Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to: (1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary; (2) make any loans or advances to the Company or any Restricted Subsidiary; or (3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture. (b) The provisions of Section 3.4(a) shall not prohibit: (1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date; (2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees; (3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; (4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company; (5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary; (6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property; (7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; (8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments; (9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority; (10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business; (11) any encumbrance or restriction pursuant to Hedging Obligations; (12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries; (13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility; (14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument; (15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6; (16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or (17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 4 contracts
Sources: Indenture (Carvana Co.), Indenture (Carvana Co.), Indenture (Carvana Co.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall Parent Guarantor will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions in cash to the Parent Guarantor or otherwise any of its Restricted Subsidiaries on its Capital Stock or pay with respect to any Indebtedness other interest or other obligations owed to the Company participation in, or any Restricted Subsidiary;
measured by, its profits (2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock Incurred in accordance with the Indenture in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Capital Stock shall not be deemed to be a restriction on the ability to make distributions on Capital Stock), (yb) pay any Indebtedness owed to the Issuer or any Note Guarantor, (c) make any loans or advances to the Parent Guarantor or any of its Restricted Subsidiaries (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Company Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute make loans or advances) or (d) sell, lease or transfer any of its properties or assets to the Parent Guarantor or any of its Restricted Subsidiaries it being understood that such an encumbrance or restriction; provided further that the issuance transfers shall not include any type of such Preferred Stock and the incurrence of such Indebtednesstransfer described in clauses (a), including payments thereon, otherwise comply with this Indenture.
(b) The provisions or (c) of Section 3.4(a) shall not prohibitthis paragraph, except in each case for such encumbrances or restrictions existing under or by reason of:
(1) any encumbrance contractual encumbrances or restriction restrictions pursuant to (a) any the Credit Facility and related documentation and other agreements or (b) any other agreement or instrument instruments in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement Note Guarantees and the Note GuaranteesSecurity Documents;
(3) any agreement or instrument of a Person acquired, directly or indirectly, by the Parent Guarantor as in effect at the time of such acquisition (to the extent such agreement or instrument was not entered into in connection with or in contemplation of such acquisition), which encumbrance or restriction pursuant is not applicable to any Person or the properties or assets of any Person other than the Person, or property and assets of the Person, so acquired;
(4) any amendments, restatements, modifications, renewals, supplements or Refinancings of those agreements referred to in clauses (1), (2) or (3) of this paragraph or this clause (4); provided, however, that the amendments, restatements, modifications, renewals, supplements or Refinancings are not materially more restrictive, taken as a whole, with respect to such encumbrances and restrictions than those contained in those agreements on the Issue Date or, in the case of the Credit Facility, on its effective date or the date such Person was acquired, whichever is applicable;
(5) applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiaryorder;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indentureagreement effecting a Refinancing of Indebtedness, in each caseprovided, however, that impose the encumbrances and restrictions contained in any such Refinancing agreement or restrictions on the subject propertyinstrument or other amendment, modification, supplement, restatement, renewal or replacement are not materially more restrictive, taken as a whole, than those contained in such predecessor agreements or instruments;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock Equity Interest or assets of the Company or any a Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions limiting the disposition or distribution of assets or property in leases, licenses, shareholder agreements, joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, limited liability company organizational documents for a joint venture and other similar agreements and instrumentsentered into in the ordinary course of business which limitation is applicable only to the assets that are the subject of such agreements;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable ruleon cash, regulation or ordercash equivalents, or required by any regulatory authority;
(10) any encumbrance or restriction on cash marketable securities, investment grade securities or other deposits or net worth imposed by insurers, sureties, bonding companies, suppliers, customers or lessors under agreements contracts or leases entered into in the ordinary course of business;
(10) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted under Section 4.03 if, as determined by the Board of Directors, the encumbrances or restrictions (i) are customary for such type of agreement and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability to make required payments on the Notes;
(11) any encumbrance customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or restriction pursuant to Hedging Obligationsthe property leased thereunder;
(12) other Indebtedness, Disqualified Stock customary nonassignment provisions in any contracts or Preferred Stock of Foreign Subsidiaries permitted to be Incurred licenses or issued subsequent subleases to the Issue Date pursuant to Section 3.2 that impose restrictions solely on extent such provisions restrict the Foreign Subsidiaries party thereto transfer of such contract or their Subsidiarieslicense or any rights or property thereunder;
(13) restrictions created in connection on cash or other deposits or covenants to maintain net worth, total assets or liquidity and similar financial responsibility covenants under contracts with any Securitization Facility, Floor Plan Facility or Receivables Facility that, customers and suppliers in the good faith determination ordinary course of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facilitybusiness;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Liens permitted to be Incurred subsequent to the Issue Date incurred pursuant to Section 3.2 if 4.05 that limit the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable right of the debtor to dispose of the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating assets subject to such agreement or instrument;Liens; and
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary purchase money obligations for inventory and floor plan financing property acquired in the automobile industry; or
(17) any encumbrance ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)leased.
Appears in 4 contracts
Sources: Indenture (Enduro SpA), Indenture (Emeco Parts Pty LTD), Indenture (Emeco Parts Pty LTD)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall Issuer will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Issuer or any Restricted Subsidiary;
(2) make any loans or advances to the Company Issuer or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.8(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4i) any encumbrance or restriction pursuant to an agreement in effect at the date of this Indenture;
(ii) any encumbrance or instrument of restriction with respect to a Person or Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness of Incurred by a Person, entered into Restricted Subsidiary on or before the date on which such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets Issuer (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company Issuer or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such the transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any encumbrance or restriction: restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement relating to any Indebtedness referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that any such restrictions contained in any such amendments or any agreement effecting refunding, replacement or refinancing referred to above, are no more restrictive than the encumbrances and restrictions contained in the agreements relating to the Indebtedness referred to in clauses (i) or (ii) of this paragraph in existence on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (3) of Section 4.8(a) above, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreement; contract;
(iib) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Company Issuer or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; or
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivc) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Issuer or any Restricted Subsidiary;
(6a) any encumbrance or restriction pursuant to Purchase Money Obligations purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in Section 4.8(a)(3) on the subject propertyproperty so acquired;
(7vi) any encumbrance restriction with respect to a Restricted Subsidiary (or restriction any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;; and
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose including applicable corporate law restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination payment of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)dividends.
Appears in 3 contracts
Sources: Indenture (Central European Media Enterprises LTD), Indenture (Central European Media Enterprises LTD), Indenture (Central European Media Enterprises LTD)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall Borrower will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company Borrower or any Restricted Subsidiary;
(2) make any loans or advances to the Company Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Borrower or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Company Borrower or any Restricted Subsidiary Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.07(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on the Effective Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or prior refinancings of such agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue DateEffective Date (as determined in good faith by the Borrower);
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees[Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any encumbrance or restriction pursuant to applicable lawLoan Documents, rule(ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, regulation or order or requirement(iii) the Existing Notes Indentures and the Existing Notes, (iv) the Existing Cablevision Notes Indentures and the Existing Cablevision Notes, and (v) the Intercreditor Agreement and any Additional Intercreditor Agreement, including in each case, any such lawrelated security documents, rule, regulation, order escrow arrangements or requirement applicable in connection with such Restricted Subsidiary’s status (or other documents related to the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryforegoing;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Company Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which (ii) such agreement or instrument is assumed by the Company Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each case, other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Borrower or was merged, consolidated or otherwise combined with or into the Company Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionSubsidiary) and outstanding on such date; provided that, for the purposes of this clause (4Section 4.07(b)(4), if another Person is the Successor CompanyCompany or any Subsidiary thereof, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise refinancesextends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clauses (1Section 4.07(b)(1), Section 4.07(b)(3) to (16) of this or Section 3.4(b4.07(b)(4) or this clause (16Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1Section 4.07(b)(1), Section 4.07(b)(3) to (16) of this or Section 3.4(b4.07(b)(4) or this clause (17Section 4.07(b)(5); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the CompanyBorrower);
(6) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Agreement or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements;
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary; or
(d) pursuant to the terms of any license, authorization, concession or permit;
(7) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(8) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchange;
(11) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(12) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(13) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Effective Date pursuant to Section 4.04 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (i) the encumbrances and restrictions contained in this Agreement or any Loan Document on the Effective Date, or (ii) is customary in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (ii), the Borrower determines at the time of issuance of such Indebtedness that such encumbrances or restrictions (x) will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments under the Loan Documents as and when they become due or (y) such encumbrances and restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness;
(14) any encumbrance or restrictions arising in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing that, in the good faith determination of an Officer or the Board of Directors of the Borrower, are necessary or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06.
Appears in 3 contracts
Sources: Credit Agreement (Altice USA, Inc.), Credit Agreement (Altice USA, Inc.), Credit Agreement (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
Subsidiary (3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); provided further that or
(3) sell, lease or transfer any of its property or assets to the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this IndentureCompany or any Restricted Subsidiary.
(b) The provisions However, paragraph (a) of this Section 3.4(a) shall 7.25 will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other by reason of an agreement or instrument in effect at or entered into on or prior to the Issue Date, including, without limitation, this Indenture and the Security Documents as in effect on such date;
(2) any encumbrance or restriction with respect to a Person pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status by reason of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of Incurred by a Person, entered into Person on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a another Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any a Restricted Subsidiary or entered into in contemplation of or in connection with such the transaction) and outstanding on such date; provided thatprovided, for however that any such encumbrance or restriction shall not extend to any assets or property of the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person Company or any such other Restricted Subsidiary shall be deemed acquired other than the assets and property so acquired;
(3) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or assumed by in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary when in any manner material to the Company or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Person becomes Unrestricted Subsidiary became a Restricted Subsidiary; provided, however that such agreement was not entered into in anticipation of the Successor CompanyUnrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary;
(5) with respect to any Restricted Subsidiary incorporated or organized outside the United States, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5), clause (12) or this clause (6) of this Section 7.25(b) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (5), clause (12) or this clause (6) of this Section 7.25(b); provided, however that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(7) in the case of clause (3) of Section 7.25(a) above, any encumbrance or restriction: :
(iA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a leaselease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract or agreementcontract, or the assignment or transfer of any leasesuch lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract or agreement; contract;
(iiB) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; ;
(iiiC) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement creating Hedging Obligations permitted from time to time under this Indenture which the Company or any of its Restricted Subsidiaries is a party entered into are not included in the ordinary course definition of business; provided that such agreement prohibits the encumbrance of solely the property or assets Indebtedness pursuant to clause (3) of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property penultimate paragraph of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or definition thereof;
(ivD) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary; or
(E) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(6) 8) any encumbrance or restriction pursuant to Purchase Money Obligations contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of Section 7.25(a) on the subject propertyproperty so acquired;
(79) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) 10) any customary provisions encumbrances or restrictions imposed pursuant to any agreement of the type described in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instrumentsthe definition of “Permitted Business Investment”;
(911) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(1012) encumbrances or restrictions contained in agreements governing Indebtedness of the Company or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 7.22; provided, however that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Company and its Restricted Subsidiaries taken as a whole, as determined by the Company in good faith, than the provisions contained in the First Lien Credit Agreement and in this Indenture as in effect on the Issue Date;
(13) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided, however that issuance of such Preferred Stock is permitted pursuant to Section 7.22 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(14) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(15) restrictions on cash or other deposits or net worth imposed by customers under agreements contracts entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;; and
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing contained in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing First Lien Credit Agreement as in effect as of Indebtedness Incurred pursuant tothe Issue Date, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained and in any amendmentamendments, supplement modifications, restatements, renewals, increases, supplements, refundings, replacements or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17)refinancings thereof; provided, howeverhowever that such amendments, that the encumbrances and restrictions modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole dividend and other payment restrictions than the encumbrances and restrictions those contained in the Initial First Lien Credit Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by effect on the Company)Issue Date.
Appears in 3 contracts
Sources: Indenture (Goodrich Petroleum Corp), Indenture (Goodrich Petroleum Corp), Note Purchase Agreement (Goodrich Petroleum Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Issuer or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company Issuer or any Restricted Subsidiary;
(2) make any loans or advances to the Company Issuer or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Issuer or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company Issuer or any Restricted Subsidiary Subsidiary, or any prohibition on securing such loans or advances made to the Issuer or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.07(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on the Combination Date, and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or prior refinancings of such agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue DateCombination Date (as determined in good faith by the Issuer);
(2) any encumbrance [Reserved];
(3) encumbrances or restriction pursuant to restrictions existing under or by reason of this Indenture, the Notes, the New Senior Guaranteed Notes, the New Senior Guaranteed Notes Collateral DocumentsIndenture, any Intercreditor Agreement the Existing Notes, the Existing Notes Indentures, the Existing Cablevision Notes, the Existing Cablevision Notes Indentures, the Legacy Cequel Senior Notes, the Legacy Cequel Senior Notes Indentures, the Senior Secured Facilities, the guarantees thereof and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance SubsidiarySenior Secured Facilities Security Documents;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Company Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which (ii) such agreement or instrument is assumed by the Company Issuer or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each case, other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Issuer or was merged, consolidated or otherwise combined with or into the Company Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionSubsidiary) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, or any Subsidiary thereof or thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise refinancesextends, renews, refunds, refinances or replaces an agreement or instrument referred to in clauses (1), (3), (4) to or (165) of this Section 3.4(b) or this clause (164.07(b) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1), (3), (4) to or (165) of this Section 3.4(b) or this clause (174.07(b); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the CompanyIssuer);
(6) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Issuer or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements;
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(D) pursuant to the terms of any license, authorization, concession or permit;
(7) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(8) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchange;
(11) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(12) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(13) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Combination Date pursuant to Section 4.04 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than (i) the encumbrances and restrictions contained in the Senior Secured Facilities on the Combination Date, together with the security documents associated therewith, if any, as in effect on or immediately prior to the Completion Date or (ii) is customary in comparable financings (as determined in good faith by the Issuer) and where, in the case of clause (ii), the Issuer determines at the time of issuance of such Indebtedness that such encumbrances or restrictions (x) will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes as and when they become due or (y) such encumbrances and restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness;
(14) any encumbrance or restrictions arising in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing that, in the good faith determination of an Officer or the Board of Directors of the Issuer, are necessary or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06.
Appears in 3 contracts
Sources: Indenture (Altice USA, Inc.), Indenture (Altice USA, Inc.), Indenture (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Issuer or any Restricted Subsidiary;
(2) make any loans or advances to the Company Issuer or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.8(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;
(2i) any encumbrance or restriction pursuant to this Indenture, the Notes, Time Warner Credit Facilities or any agreement in effect on the Notes Collateral Documents, any Intercreditor Agreement and the Note GuaranteesIssue Date;
(3ii) any encumbrance or restriction pursuant with respect to applicable law, rule, regulation a Restricted Subsidiary or order its property or requirement, including any such law, rule, regulation, order or requirement applicable assets in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into existence on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement its property or instrument is assumed assets was acquired (directly or indirectly) by the Company or any Restricted Subsidiary in connection with an acquisition of assets Issuer (other than Capital Stock encumbrances or restrictions relating to Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company Issuer or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such the transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any encumbrance or restriction: restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness referred to in clause (i) or (ii) of this Section 4.8(b) or this clause (iii) or contained in any amendment to an agreement relating to any Indebtedness referred to in clause (i) or (ii) of this Section 4.8(b) or this clause (iii); provided, however, that any such restrictions contained in any such amendments or any agreement effecting refunding, replacement or refinancing referred to above, are not materially more restrictive taken as a whole than the encumbrances and restrictions contained in the agreements relating to the Indebtedness referred to in clauses (i) or (ii) of this Section 4.8(b) in existence on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (3) of Section 4.8(a), any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreement; contract;
(iib) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; or
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivc) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Issuer or any Restricted Subsidiary;
(6a) any encumbrance or restriction pursuant to Purchase Money Obligations purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of Section 4.8(a) on the subject propertyproperty so acquired;
(7vi) any encumbrance restriction with respect to a Restricted Subsidiary (or restriction any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authorityincluding applicable corporate law restrictions on the payment of dividends;
(10viii) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under provisions in leases and other agreements entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business;; and
(11ix) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness of the Issuer or a Restricted Subsidiary permitted to be Incurred subsequent to incurred after the Issue Date pursuant to under Section 3.2 4.3 if the encumbrances and or restrictions contained in any such agreement or instrument the relevant agreement, taken as a whole whole, are not materially less favorable more disadvantageous to the Holders Note holders than is customary in comparable financings or agreements (as determined for which a determination in good faith by the CompanyBoard of Directors shall be conclusive) and where either (Aa) the Company determines at the time Board of entry into such agreement or instrument Directors has determined in good faith that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the CompanyIssuer’s ability to make principal or payments of principal, interest payments and Additional Amounts on the Notes when they become due and payable or (Bb) such encumbrance or restriction applies only during the continuance if a default occurs in respect of a default payment or financial covenant relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)Indebtedness.
Appears in 3 contracts
Sources: Indenture (Central European Media Enterprises LTD), Indenture (Central European Media Enterprises N.V.), Indenture (CME Media Enterprises B.V.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.08(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility the Senior Facilities Agreement, (b) the Encore Private Placement Notes Agreement, or (bc) any other agreement or instrument (including the Existing Secured Notes Indentures the Existing Unsecured Notes Indentures), in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(173) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1Section 4.08(b)(1) to (16) of this or Section 3.4(b4.08(b)(2) or this clause (16Section 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1Section 4.08(b)(1) to (16) of this or Section 3.4(b4.08(b)(2) or this clause (17Section 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such the Company or any Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company);
(4) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements, debt purchase agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, the terms of any license, authorization, concession or permit or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09 if (a) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) as is customary in comparable financings (as determined in good faith by the Company)or (b) the Company determines at the time such Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes;
(12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Board of Directors of the Company, are necessary or advisable;
(13) any encumbrance or restriction existing by reason of any lien permitted under Section 4.12;
(14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions under Section 4.11(b) provided that the terms and conditions of any such encumbrances or restrictions are, in the good faith judgment of the Board of Directors of the Company, no more restrictive in any material respect than those under or pursuant to the agreement so extended, renewed, refinanced or replaced.
Appears in 3 contracts
Sources: Indenture (Encore Capital Group Inc), Indenture (Encore Capital Group Inc), Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Issuer or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company Issuer or any Restricted Subsidiary;
(2) make any loans or advances to the Company Issuer or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Issuer or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company Issuer or any Restricted Subsidiary Subsidiary, or any prohibition on securing such loans or advances made to the Issuer or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.07(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date, 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 materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue Date (as determined in good faith by the Issuer);
(2) any encumbrance [Reserved];
(3) encumbrances or restriction pursuant to restrictions existing under or by reason of this Indenture, the Notes, the Senior Notes Collateral DocumentsIndenture, any Intercreditor Agreement the Senior Notes, the Existing Notes, the Existing Notes Indentures, the Senior Secured Facilities, the guarantees thereof, and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance SubsidiarySenior Secured Facilities Security Documents;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Company Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which (ii) such agreement or instrument is assumed by the Company Issuer or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each case, other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Issuer or was merged, consolidated or otherwise combined with or into the Company Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionSubsidiary) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, or any Subsidiary thereof or thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise refinancesextends, renews, refunds, refinances or replaces an agreement or instrument referred to in clauses (1), (3), (4) to or (165) of this Section 3.4(b) or this clause (164.07(b) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1), (3), (4) to or (165) of this Section 3.4(b) or this clause (174.07(b); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the CompanyIssuer);
(6) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Issuer or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements;
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(D) pursuant to the terms of any license, authorization, concession or permit;
(7) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(8) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchange;
(11) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(12) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(13) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.04 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than (i) the encumbrances and restrictions contained in the Senior Secured Facilities on the Issue Date, together with the security documents associated therewith, if any, as in effect on or immediately prior to the Completion Date or (ii) is customary in comparable financings (as determined in good faith by the Issuer) and where, in the case of clause (ii), the Issuer determines at the time of issuance of such Indebtedness that such encumbrances or restrictions (x) will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes as and when they become due or (y) such encumbrances and restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness;
(14) any encumbrance or restrictions arising in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing that, in the good faith determination of an Officer or the Board of Directors of the Issuer, are necessary or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06.
Appears in 2 contracts
Sources: Indenture (Altice USA, Inc.), Indenture (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.08(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility (including the Senior Finance Documents) or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date, including the indentures governing the Existing Secured Notes and the Existing Unsecured Notes and the agreement governing the Term Loans;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(173) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b4.08(b)(1), 4.08(b)(2) or this clause (164.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b4.08(b)(1), 4.08(b)(2) or this clause (174.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company);
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument (a) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.05 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Revolving Credit Agreement, together with the security documents associated therewith, as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of clause (ii), the Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Issuers’ ability to make principal or interest payments on the Notes; or
(12) any encumbrance or restriction existing by reason of any lien permitted under Section 4.07.
Appears in 2 contracts
Sources: Senior Indenture (NXP Semiconductors N.V.), Senior Indenture (NXP Semiconductors N.V.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (ai) any Credit Facility or (bii) any other agreement or instrument instrument, in each case, in effect at or entered into on the Issue Date (or prior to otherwise required as of the Issue Date), and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein are not, in the good faith determination of the Board of Directors of the Company, materially more restrictive, taken as a whole, than those contained in the those agreements on the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirementorder, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or of the status of foregoing issued by any Subsidiary of such Restricted Subsidiary) as a Captive Insurance SubsidiaryGaming Authority;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; or (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and FF&E Financings or Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practices;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where where, in the case of clause (ii), either (A) the Company determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrumentIndebtedness;
(1514) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1715) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, restates, replaces, restructures or refinances, an agreement or instrument referred to in clauses (1) to (1614) of this Section 3.4(b) or this clause (1615) (an “Initial Agreement”) or contained in any amendment, supplement supplement, extension, renewal, restatement, replacement, restructuring or other modification to an agreement referred to in clauses (1) to (1614) of this Section 3.4(b) or this clause (1715); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no not materially less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 2 contracts
Sources: Indenture (Churchill Downs Inc), Indenture (CHURCHILL DOWNS Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall may not, and shall may not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1a) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(yb) make any loans or advances to the Company or any Restricted Subsidiary (the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall being deemed not be deemed to constitute such an encumbrance or restriction); provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.or
(bc) transfer any of its property or assets to the Company or any Restricted Subsidiary. The preceding provisions of Section 3.4(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4i) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the Issue Date, including, without limitation, the Indenture, the Notes and the Senior Credit Agreement in effect on such date;
(ii) any encumbrance or restriction with respect to a Person or Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness of Incurred by a Person, entered into Restricted Subsidiary on or before the date on which such Person the Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of the transaction or in connection with such transactiontransactions) and outstanding on such date; provided thatdate provided, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or that any such Subsidiary encumbrance or restriction shall be deemed acquired not extend to any assets or assumed by property of the Company or any other Restricted Subsidiary when such Person becomes other than the Successor Companyassets and property so acquired;
(5iii) any encumbrance or restriction: restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c) of the first paragraph of this Section 3.06, any encumbrance or restriction:
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreement; contract;
(ii2) contained in mortgages, pledges, charges pledges or other security agreements permitted under this the Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; or
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv3) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6v) any encumbrance or restriction pursuant to Purchase Money Obligations (i) purchase money obligations for property acquired in the ordinary course of business and Capitalized (ii) Capital Lease Obligations permitted under this the Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 3.06 on the subject propertyproperty so acquired;
(7vi) any encumbrance restriction with respect to a Restricted Subsidiary (or restriction any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents leases and other similar agreements and instrumentsentered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(9ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements encumbrances and restrictions contained in contracts entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument not relating to any Indebtedness, permitted and that do not individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to be Incurred subsequent realized the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the Issue Date Company or any Restricted Subsidiary;
(xi) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to Section 3.2 if which such Indebtedness was Incurred if:
(a) either (1) the encumbrances and restrictions contained encumbrance or restriction applies only in any the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A2) the Company determines at the time of entry into that any such agreement encumbrance or instrument that such encumbrances or restrictions restriction will not adversely affect, in any material respect, materially affect the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant toNotes, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Board of Directors of the Company), whose determination shall be conclusive, and
(b) the encumbrance or restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable financing (as determined by the Company):
(xii) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course or business; or
(xiii) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business.
Appears in 2 contracts
Sources: First Supplemental Indenture (Unit Corp), First Supplemental Indenture (Unit Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.08(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility the Senior Facilities Agreement, (b) the Existing Encore Private Placement Notes Agreement, or (bc) any other agreement or instrument (including the Existing Secured Notes Indentures the Existing Unsecured Notes Indentures), in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(173) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1Section 4.08(b)(1) to (16) of this or Section 3.4(b4.08(b)(2) or this clause (16Section 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1Section 4.08(b)(1) to (16) of this or Section 3.4(b4.08(b)(2) or this clause (17Section 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such the Company or any Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company);
(4) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements, debt purchase agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, the terms of any license, authorization, concession or permit or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09 if (a) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) as is customary in comparable financings (as determined in good faith by the Company)or (b) the Company determines at the time such Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes;
(12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Board of Directors of the Company, are necessary or advisable;
(13) any encumbrance or restriction existing by reason of any lien permitted under Section 4.12;
(14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions under Section 4.11(b) provided that the terms and conditions of any such encumbrances or restrictions are, in the good faith judgment of the Board of Directors of the Company, no more restrictive in any material respect than those under or pursuant to the agreement so extended, renewed, refinanced or replaced.
Appears in 2 contracts
Sources: Indenture (Encore Capital Group Inc), Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted SubsidiarySubsidiary of the Company (provided, however, that (i) the priority that any series of Preferred Stock of a Restricted Subsidiary of the Company has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (ii) the subordination of Indebtedness owed to the Company or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2) make any loans or advances to the Company or a Restricted Subsidiary of the Company (it being understood that the subordination of loans or advances made to the Company or any Restricted SubsidiarySubsidiary to other Indebtedness incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any a Restricted Subsidiary of the Company. However, the preceding restrictions of this Section 3.4 will not apply to other Indebtedness Incurred encumbrances or restrictions existing under or by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibitreason of:
(1) any encumbrance or restriction pursuant to (a) in any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue DateDate (including the Credit Agreement);
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement Securities and the Note Subsidiary Guarantees;
(3) any encumbrance or restriction pursuant with respect to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such a Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction the Company pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into incurred by such Restricted Subsidiary on or before prior to the date on which such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any became a Restricted Subsidiary in connection with an acquisition of assets the Company (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionCompany) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(174) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing Refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses clause (1), (2) to or (163) of this Section 3.4(b) paragraph or this clause (174) or contained in any amendment to an agreement referred to in clause (1), (2) or (3) of this paragraph or this clause (4); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or instrument amendment are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in the Initial Agreement or Initial Agreements to which such refinancing or amendmentagreements, supplement or other modification relates (as determined in good faith by the Company;
(a) customary non-assignment provisions in any contract, license, lease or sale or exchange agreement and (b) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers or lessors under contracts or leases, in the case of each of clauses (a) and (b), entered into in the ordinary course of business;
(6) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary of the Company to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(7) any restriction with respect to a Restricted Subsidiary of the Company imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(8) any encumbrance or restriction in connection with a Qualified Receivables Transaction;
(9) Refinancing Indebtedness; provided that the encumbrances or restrictions contained in the agreements governing such Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined in good faith by the Company;
(10) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 3.6 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary of the Company that is not a Domestic Subsidiary;
(13) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(14) agreements governing Hedging Contracts, Interest Rate Agreements and Currency Agreements incurred in the ordinary course of business;
(15) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary of the Company; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary of the Company and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary of the Company other than the assets and property of such Unrestricted Subsidiary; and
(16) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (1) through (15) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Company.
Appears in 2 contracts
Sources: Indenture (CNX Resources Corp), Indenture (CNX Resources Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(y2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.or
(b3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions of Section 3.4(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4i) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the Issue Date, including, without limitation, this Indenture, the Notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii) any encumbrance or restriction with respect to a Person or Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness of Incurred by a Person, entered into Restricted Subsidiary on or before the date on which such Person Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed otherwise) by the Company or any a Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such the transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or that any such Subsidiary encumbrance or restriction shall be deemed acquired not extend to any assets or assumed by property of the Company or any other Restricted Subsidiary when other than the assets and property so acquired and property acquired by such Person becomes the Successor CompanyRestricted Subsidiary after its date of acquisition;
(5iii) any encumbrance or restriction: restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in mortgagesany such agreement, pledgesamendment, charges restatement, modification, renewal, increase, refunding, replacement or other security refinancing are not, in the good faith judgment of the Company’s Board of Directors, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements permitted under referred to in clause (i) or (ii) of this Indenture paragraph on the Issue Date or securing Indebtedness the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary Subsidiary, whichever is applicable;
(including any Floor Plan Facilityiv) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the (a) purchase money obligations for property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into acquired in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivb) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the subject propertyproperty so acquired;
(7v) any encumbrance restriction with respect to a Restricted Subsidiary (or restriction any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person (whether by sale, merger, consolidation, acquisition of all Capital Stock or substantially all otherwise) of the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) vi) customary non-assignment provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents leases and other similar agreements and instrumentsentered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(9vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10viii) any encumbrance customary encumbrances or restriction on cash restrictions existing under or other deposits by reason of provisions in joint venture, partnership (limited or net worth imposed by customers under general), limited liability company or similar agreements entered required in connection with the entering into in the ordinary course of businesssuch transaction;
(11ix) any encumbrance or restriction pursuant to Hedging Obligationscustomary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(12x) other Indebtedness, Disqualified Stock or Preferred Stock restrictions relating to any Lien permitted under this Indenture imposed by the holder of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiariessuch Lien;
(13xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date: (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary; (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in connection respect of any Capital Stock of such Subsidiary; (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party; and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any Securitization Facilityencumbrances or restrictions imposed by any amendments, Floor Plan Facility restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or Receivables Facility thatrefinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith determination judgment of the Company’s Board of Directors, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not no more materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions restrictive with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement than those prior to such amendment or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)refinancing.
Appears in 2 contracts
Sources: Indenture (Davita Inc), Indenture (Physicians Management, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary (other than Excluded Project Subsidiaries) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than Excluded Project Subsidiaries) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any of its Restricted Subsidiaries (other than Excluded Project Subsidiaries), or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sellother than Excluded Project Subsidiaries), lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock;
(y2) make any loans or advances to the Company or any Restricted Subsidiary (other than Excluded Project Subsidiaries), it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute make loans or advances; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (other than any Excluded Project Subsidiary) (it being understood that such an encumbrance transfers shall not include any type of transfer described in clause (1) or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture(2) above).
(b) The provisions of Section 3.4(a4.09(a) shall not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(1) any encumbrance contractual encumbrances or restriction restrictions pursuant to (a) any the Senior Credit Facility and related documentation and other agreements or (b) any other agreement or instrument instruments in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Indenture and the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or other instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries in existence at the time of such acquisition, which encumbrance or restriction is a party entered into in not applicable to any Person, or the ordinary course properties or assets of business; provided that such agreement prohibits any Person, other than the encumbrance of solely Person and its Subsidiaries, or the property or assets of the Company Person and its Subsidiaries, so acquired (including after-acquired property);
(4) any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clauses (1), (2) or (3) of this Section 4.09(b) or this clause (4); provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive than the encumbrances and restrictions contained the agreements referred to in clauses (1), (2) or (3) of this Section 4.09(b) on the Issue Date or the date such Restricted Subsidiary that are 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 became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(5) in the case of Section 4.09(a)(3), Liens permitted to be Incurred under Section 4.05 that limit the right of the debtor to dispose of the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiarysecuring such Indebtedness;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations permitted under this the Indenture, in each case, that impose encumbrances or restrictions of the nature described in Section 4.09(a)(3) on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the direct or indirect sale or disposition to a Person of all or substantially all a portion of the Capital Stock or assets of such Subsidiary;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) any customary provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(10) any customary provisions in leases, subleases or licenses and other agreements entered into by the Company or any Restricted Subsidiary (or in the property or assets that are subject to such restriction) pending the closing ordinary course of such sale or disposition;business; and
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(911) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 2 contracts
Sources: Fifth Supplemental Indenture (Covanta Holding Corp), Fourth Supplemental Indenture (Covanta Holding Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary (other than the Issuer or a Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (ai) any Credit Facility Facility, (ii) the Existing Notes or (biii) any other agreement or instrument instrument, in each case, in effect at or entered into on the Issue Date (or prior to otherwise required as of the Issue Date);
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order order, or requirement, including required by any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryregulatory authority;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or such agreement or instrument was entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iviii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and or Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practices;
(1110) any encumbrance or restriction pursuant to Hedging Obligations;
(1211) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(1412) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Existing Credit Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where where, in the case of clause (ii), either (A) the Company determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrumentIndebtedness;
(1513) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1714) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, restates, replaces, restructures or refinances, an agreement or instrument referred to in clauses (1) to (1613) of this Section 3.4(b) or this clause (1614) (an “Initial Agreement”) or contained in any amendment, supplement supplement, extension, renewal, restatement, replacement, restructuring or other modification to an agreement referred to in clauses (1) to (1613) of this Section 3.4(b) or this clause (1714); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no not materially less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 2 contracts
Sources: Indenture (Primo Water Corp /CN/), Indenture (Primo Water Corp /CN/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
Company, (2ii) make any loans or advances to the Company or any Restricted Subsidiary; or
(3iii) sell, lease or transfer any of its property or assets to the Company or Company, except any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or entered into on or prior to the Issue Date, any Credit Facility, the Senior Indenture, this Indenture, the Senior Notes or the Notes;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (other than Capital Stock or except to the extent that such Indebtedness was Incurred as consideration into finance, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with with, such transaction) and outstanding on such dateacquisition, merger or consolidation); provided that, that for the purposes of this clause (42), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Company or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the Successor Company;
(53) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any encumbrance amendment, supplement or restriction: other modification to an Initial Agreement (ian “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment are not materially less favorable to the Holders of the Notes taken as a whole than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement; contract, (iiB) contained in mortgagesby virtue of any transfer of, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company transfer, option or right with respect to, or Lien on, any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such any Restricted Subsidiary that are subject not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to such agreement, the payment rights arising thereunder or extent restricting the proceeds thereof and does not extend to any other asset or property transfer of the Company property or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or subject thereto, (ivD) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
, (6E) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty or assets so acquired, (F) on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary or (I) pursuant to Hedging Obligations;
(75) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(96) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(107) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 3.2 407 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and where either (Ax) the Company determines at the time of entry into such agreement or instrument that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the Company’s ability to make principal or interest payments on the Notes or (By) such encumbrance or restriction applies only during the continuance if a default occurs in respect of a default payment or financial covenant relating to such agreement or instrument;
Indebtedness, (15B) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant relating to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
sale of receivables by a Foreign Subsidiary or (17C) relating to Indebtedness of or a Financing Disposition to or by any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)Receivables Entity.
Appears in 2 contracts
Sources: Indenture (VWR Funding, Inc.), Indenture (VWR International, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The From and after the Closing Date, the Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(y2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such an encumbrance transfers shall not include any type of transfer described in clause (1) or restriction; provided further that the issuance (2) of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this IndentureSection 4.12(a)).
(b) The provisions of Section 3.4(a4.12(a) shall will not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(1) any encumbrance contractual encumbrances or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument restrictions in effect at or entered into on the Closing Date, including pursuant to (i) the Senior Secured Credit Facilities and related documentation and (ii) Hedging Obligations and other agreements or prior instruments (whether or not related to the Issue DateSenior Secured Credit Facilities);
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any agreement or other instrument of a Person acquired by the Company or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction pursuant is not applicable to applicable lawany Person, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status properties or assets of any Subsidiary Person, other than the Person and its Subsidiaries, or the property or assets of such Restricted Subsidiary) as a Captive Insurance Subsidiarythe Person and its Subsidiaries, so acquired (including after-acquired property);
(4) any encumbrance or restriction pursuant to any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in this paragraph; provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or instrument refinancings are, in the good faith judgment of the Company, not materially more restrictive, taken as a Person whole, than the encumbrances and restrictions contained in the agreements referred to in this paragraph on the Closing Date or relating the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(5) in the case of clause (3) of Section 4.12(a), Liens permitted to any be Incurred under Section 4.10 that limit the right of the debtor to dispose of the assets subject to such Liens;
(6) agreements in respect of property acquired in the ordinary course of business or consistent with past practice and Capitalized Lease Obligations permitted under this Indenture, to the extent such encumbrance or restriction is customary for such purchase money obligation or Capitalized Lease Obligation;
(7) agreements in respect of the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or a portion of the Capital Stock or Indebtedness assets of a Personsuch Subsidiary;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers, or required by insurance, surety or bonding companies;
(9) any customary provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries, organizational documents, equityholder agreements and other similar agreements;
(10) any customary provisions (including anti-assignment, net worth and similar provisions) in leases, subleases or licenses and other agreements entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary;
(11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or was designated as required by any regulatory authority;
(12) any Purchase Money Note or other Indebtedness or contractual requirements Incurred with respect to a Restricted Subsidiary or on which Receivables Financing Transaction relating exclusively to a Receivables Entity that, in the good faith determination of Senior Management, are necessary to effect such Receivables Financing Transaction; and
(13) any agreement or instrument is assumed by the Company governing any Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred or issued under this Indenture that contains encumbrances and other restrictions that either (x) are no more restrictive in any material respect taken as a whole with respect to any Restricted Subsidiary than (i) the restrictions contained in connection with an acquisition this Indenture or the Senior Secured Credit Facilities as of assets (other than Capital Stock or the Closing Date or, in the case of any Refinancing Indebtedness, in the Indebtedness Incurred as consideration inbeing refinanced, or (ii) those encumbrances and other restrictions that are in effect on the Closing Date with respect to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions that Restricted Subsidiary pursuant to which such Person became agreements in effect on the Closing Date, (y) are not materially more disadvantageous, taken as a Restricted Subsidiary whole, to the Holders than is customary in comparable financings for similarly situated issuers or was acquired by (z) will not otherwise materially impair the Company or was mergedIssuer’s ability to make payments on the Notes when due, consolidated or otherwise combined with or into in each case in the Company or any Restricted Subsidiary or entered into in contemplation good faith judgment of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor CompanySenior Management;
(514) any encumbrance or restriction: :
(iA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; ;
(iiB) pursuant to customary provisions contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; ;
(iiiC) restrictions or conditions pursuant to customary provisions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or or
(ivD) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(615) any encumbrance Indebtedness of Non-Guarantor Restricted Subsidiaries permitted to be Incurred or restriction issued subsequent to the Closing Date pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, Section 4.09 that impose encumbrances or restrictions solely on the subject propertyNon-Guarantor Restricted Subsidiaries party thereto and/or their Subsidiaries;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(1116) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(1417) any encumbrance or restriction arising pursuant to an agreement or instrument any documents relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;Transactions; or
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(1618) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance amendment, restatement, modification, renewal, supplement, refunding, replacement or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (174.12(b); provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to good faith judgment of the Holders Company, not materially more restrictive, taken as a whole whole, than the encumbrances and restrictions contained in the Initial Agreement agreements referred to in this Section 4.12(b) on the Closing Date or Initial Agreements to which the date such refinancing Restricted Subsidiary became a Restricted Subsidiary or amendmentwas merged into a Restricted Subsidiary, supplement or other modification relates (as determined in good faith by the Company)whichever is applicable.
Appears in 2 contracts
Sources: Senior Notes Indenture (Neogen Corp), Senior Notes Indenture (Garden SpinCo Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary (other than Excluded Project Subsidiaries) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than Excluded Project Subsidiaries) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any of its Restricted Subsidiaries (other than Excluded Project Subsidiaries), or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
Subsidiary (2other than Excluded Project Subsidiaries) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(y2) make any loans or advances to the Company or any Restricted Subsidiary (other than Excluded Project Subsidiaries) (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (other than any Excluded Project Subsidiary) (it being understood that such an encumbrance transfers shall not include any type of transfer described in clause (1) or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture(2) above).
(b) The provisions of Section 3.4(a4.09(a) shall not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(1) any encumbrance contractual encumbrances or restriction restrictions pursuant to (a) any the Senior Credit Facility and related documentation and other agreements or (b) any other agreement or instrument instruments in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Indenture and the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or other instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is a party entered into in not applicable to any Person, or the ordinary course properties or assets of business; provided that such agreement prohibits any Person, other than the encumbrance of solely Person and its Subsidiaries, or the property or assets of the Company Person and its Subsidiaries, so acquired (including after-acquired property);
(4) any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clauses (1), (2) or (3) of this Section 4.09(b) or this clause (4); provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive than the encumbrances and restrictions contained the agreements referred to in clauses (1), (2) or (3) of this Section 4.09(b) on the Issue Date or the date such Restricted Subsidiary that are 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 became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(5) in the case of Section 4.09(a)(3), Liens permitted to be Incurred under Section 4.05 that limit the right of the debtor to dispose of the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiarysecuring such Indebtedness;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations permitted under this the Indenture, in each case, that impose encumbrances or restrictions of the nature described in Section 4.09(a)(3) on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the direct or indirect sale or disposition to a Person of all or substantially all a portion of the Capital Stock or assets of such Subsidiary;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) any customary provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(10) any customary provisions in leases, subleases or licenses and other agreements entered into by the Company or any Restricted Subsidiary (or in the property or assets that are subject to such restriction) pending the closing ordinary course of such sale or disposition;business; and
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(911) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 2 contracts
Sources: Third Supplemental Indenture (Covanta Holding Corp), Second Supplemental Indenture (Covanta Holding Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Issuer or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company Issuer or any Restricted Subsidiary;
(2) make any loans or advances to the Company Issuer or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Issuer or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company Issuer or any Restricted Subsidiary Subsidiary, or any prohibition on securing such loans or advances made to the Issuer or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.07(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on the Combination Date, and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or prior refinancings of such agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue DateCombination Date (as determined in good faith by the Issuer);
(2) any encumbrance [Reserved];
(3) encumbrances or restriction pursuant to restrictions existing under or by reason of this Indenture, the Notes, the New Senior Notes, the New Senior Notes Collateral DocumentsIndenture, any Intercreditor Agreement the Existing Notes, the Existing Notes Indentures, the Existing Cablevision Notes, the Existing Cablevision Notes Indentures, the Legacy Cequel Senior Notes, the Legacy Cequel Senior Notes Indentures, the Senior Secured Facilities, the guarantees thereof, and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance SubsidiarySenior Secured Facilities Security Documents;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Company Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which (ii) such agreement or instrument is assumed by the Company Issuer or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each case, other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Issuer or was merged, consolidated or otherwise combined with or into the Company Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionSubsidiary) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, or any Subsidiary thereof or thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise refinancesextends, renews, refunds, refinances or replaces an agreement or instrument referred to in clauses (1), (3), (4) to or (165) of this Section 3.4(b) or this clause (164.07(b) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1), (3), (4) to or (165) of this Section 3.4(b) or this clause (174.07(b); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the CompanyIssuer);
(6) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Issuer or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements;
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(D) pursuant to the terms of any license, authorization, concession or permit;
(7) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(8) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchange;
(11) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(12) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(13) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Combination Date pursuant to Section 4.04 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than (i) the encumbrances and restrictions contained in the Senior Secured Facilities on the Combination Date, together with the security documents associated therewith, if any, as in effect on or immediately prior to the Completion Date or (ii) is customary in comparable financings (as determined in good faith by the Issuer) and where, in the case of clause (ii), the Issuer determines at the time of issuance of such Indebtedness that such encumbrances or restrictions (x) will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes as and when they become due or (y) such encumbrances and restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness;
(14) any encumbrance or restrictions arising in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing that, in the good faith determination of an Officer or the Board of Directors of the Issuer, are necessary or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06.
Appears in 2 contracts
Sources: Indenture (Altice USA, Inc.), Indenture (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(y2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.or
(b3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions of Section 3.4(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4i) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the Issue Date, including, without limitation, this Indenture and the 20[ ] Indenture, the notes issued thereunder and the Guarantees thereof, the Existing Notes and the Guarantees thereof and the related indentures and the Senior Credit Facilities, in each case, as in effect on such date;
(ii) any encumbrance or restriction with respect to a Person or Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness of Incurred by a Person, entered into Restricted Subsidiary on or before the date on which such Person Restricted Subsidiary was acquired (whether by merger, consolidation, acquisition of Capital Stock or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed otherwise) by the Company or any a Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness that was Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such the transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or that any such Subsidiary encumbrance or restriction shall be deemed acquired not extend to any assets or assumed by property of the Company or any other Restricted Subsidiary when other than the assets and property so acquired and property acquired by such Person becomes the Successor CompanyRestricted Subsidiary after its date of acquisition;
(5iii) any encumbrance or restriction: restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of an agreement referred to in clause (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in mortgagesany such agreement, pledgesamendment, charges restatement, modification, renewal, increase, refunding, replacement or other security refinancing are not, in the good faith judgment of the Company’s Board of Directors, materially less favorable, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements permitted under referred to in clause (i) or (ii) of this Indenture paragraph on the Issue Date or securing Indebtedness the date such Restricted Subsidiary became a Restricted Subsidiary or was acquired (whether by merger, consolidation, acquisition of Capital Stock or otherwise) by the Company or a Restricted Subsidiary Subsidiary, whichever is applicable;
(including any Floor Plan Facilityiv) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the (a) purchase money obligations for property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into acquired in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivb) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.14 on the subject propertyproperty so acquired;
(7v) any encumbrance restriction with respect to a Restricted Subsidiary (or restriction any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person (whether by sale, merger, consolidation, acquisition of all Capital Stock or substantially all otherwise) of the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) vi) customary non-assignment provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents leases and other similar agreements and instrumentsentered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(9vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10viii) any encumbrance customary encumbrances or restriction on cash restrictions existing under or other deposits by reason of provisions in joint venture, partnership (limited or net worth imposed by customers under general), limited liability company or similar agreements entered required in connection with the entering into in the ordinary course of businesssuch transaction;
(11ix) any encumbrance or restriction pursuant to Hedging Obligationscustomary restrictions imposed on the transfer, licensing, sub-licensing and assignment of intellectual property and of intellectual property licenses;
(12x) other Indebtedness, Disqualified Stock or Preferred Stock restrictions relating to any Lien permitted under this Indenture imposed by the holder of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiariessuch Lien;
(13xi) any other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction;
(xii) in the case of Restricted Subsidiaries that are not Subsidiary Guarantors, restrictions imposed under instruments governing Indebtedness Incurred pursuant to the definition of “Permitted Indebtedness”;
(xiii) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, restrictions under the constitutive documents governing such Subsidiary: (A) with respect to Subsidiaries existing on the Issue Date; and (B) with respect to Subsidiaries created or acquired after the Issue Date: (1) prohibiting such Subsidiary from Guaranteeing Indebtedness of the Company or another Subsidiary; (2) on dividend payments and other distributions solely to permit pro rata dividends and other distributions in connection respect of any Capital Stock of such Subsidiary; (3) limiting transactions with the Company or another Subsidiary to those with terms that are fair and reasonable to such Subsidiary and no less favorable to such Subsidiary than could have been obtained in an arm’s-length transaction with an unrelated third party; and (4) limiting such Subsidiary’s ability to transfer assets or Incur Indebtedness without the consent of the holders of the Capital Stock of such Subsidiary; and
(xiv) any Securitization Facilityencumbrances or restrictions imposed by any amendments, Floor Plan Facility restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or Receivables Facility thatrefinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided that such amendments, restatements, modifications, renewals, increases, restrictions, encumbrances, refundings, replacements or refinancings are, in the good faith determination judgment of the Company’s Board of Directors, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not no more materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions restrictive with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement than those prior to such amendment or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)refinancing.
Appears in 2 contracts
Sources: Indenture (Physicians Management, LLC), Indenture (Physicians Management, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends dividends, in cash or otherwise, or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness Debt or other obligations obligation owed to the Company or any other Restricted SubsidiarySubsidiary of the Company;
(2) make any loans or advances to the Company or any other Restricted SubsidiarySubsidiary of the Company; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any other Restricted Subsidiary to other Indebtedness Incurred by of the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this IndentureCompany.
(b) The provisions of Section 3.4(a) foregoing limitations shall not prohibitapply to:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or entered into on the Issue Date (including, without limitation, under any Credit Facilities, related Hedging Obligations and Cash Management Services), and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or prior to refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially less favorable, taken as a whole, than those contained in such agreements as in effect on the Issue Date, as determined in good faith by the senior management or Board of Directors of the Company;
(2) any encumbrance or restriction existing under or by reason of Debt Incurred pursuant to this IndentureSections 4.08 and 4.10; provided that (x) either (i) the encumbrance or restriction applies only in the event of and during the continuance of a payment default or a default with respect to a financial covenant contained in such Debt or agreement or (ii) the Company determines at the time any such Debt is Incurred (or, in the Notescase of any such Debt under a revolving Credit Facility, at the time such revolving Credit Facility is established), and at the time of any modification of the terms of any such encumbrance or restriction, that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes Collateral Documentsand any other Debt that is an obligation of the Company and (y) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings or agreements (as determined by senior management or the Board of Directors of the Company in good faith at the time any such Debt is Incurred (or, in the case of any Intercreditor Agreement such Debt under a revolving Credit Facility, at the time such revolving Credit Facility is established), and at the Note Guaranteestime of any modification of the terms of any such encumbrance or restriction);
(3) any encumbrance or restriction pursuant with respect to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such a Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction the Company pursuant to an agreement or instrument of a Person or relating to any Capital Debt Incurred or Preferred Stock or Indebtedness of a Person, entered into issued by such Restricted Subsidiary on or before prior to the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as Subsidiary became a Restricted Subsidiary or on which such agreement or instrument is assumed was acquired by the Company or any other Restricted Subsidiary in connection with an acquisition of assets (the Company and outstanding on such date, other than Capital Debt Incurred or Preferred Stock or Indebtedness Incurred issued as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Company or was merged, consolidated any other Restricted Subsidiary of the Company;
(4) any encumbrance or otherwise combined restriction with or into respect to a Restricted Subsidiary of the Company pursuant to an agreement evidencing Debt Incurred or Preferred Stock issued without violation of this Indenture or effecting a refinancing of Debt Incurred or Preferred Stock issued pursuant to an agreement referred to in Section 4.12(b)(1), (2) or (3) or this Section 4.12(b)(4) or contained in any amendment to an agreement referred to in Section 4.12(b)(1), (2) or (3) or this Section 4.12(b)(4); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, refinancing agreement or entered into amendment, taken as a whole, are not materially less favorable to the Holders, as determined in contemplation good faith by the senior management or Board of or in connection with such transaction) and outstanding on such date; provided that, for Directors of the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or than those existing immediately prior to the entry into such agreement, refinancing agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Companyamendment;
(5) in the case of Section 4.12(a)(3), any encumbrance or restriction: :
(i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contract property or agreement, asset or the assignment or transfer of any such lease, license or other contract or agreement; contract;
(ii) contained in mortgagesby virtue of any transfer of, pledgesagreement to transfer, charges option or other security agreements permitted under this Indenture right with respect to, or securing Indebtedness of the Company or a Restricted Subsidiary (including Lien on, any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which of the Company or any of its Restricted Subsidiaries not otherwise prohibited by this Indenture;
(iii) that is included in a party entered into licensing agreement to the extent such restrictions limit the transfer of the property subject to such licensing agreement;
(iv) arising or agreed to in the ordinary course of business; provided business and that such agreement prohibits does not, individually or in the encumbrance aggregate, detract from the value of solely the property or assets of the Company or such any of its Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth Subsidiaries in any reciprocal easement agreements of manner material to the Company or any such Restricted SubsidiarySubsidiary as determined in good faith by senior management or the Board of Directors of the Company; and
(v) contained in security agreements, mortgages or similar documents securing Debt of a Restricted Subsidiary of the Company incurred in accordance with this Indenture to the extent those encumbrances or restrictions restrict the transfer of the property subject to such security agreements;
(6) any encumbrance restriction with respect to a Restricted Subsidiary of the Company or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances any of its properties or restrictions on the subject property;
(7) any encumbrance or restriction assets imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any such Restricted Subsidiary (whether by stock sale, asset sale, merger, consolidation or the property or assets that are subject to such restrictionotherwise) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(97) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rulelaw, regulation or order, ;
(8) any encumbrance or required by any regulatory authorityrestriction under Capitalized Lease Obligations and purchase money obligations for property leased or acquired in the ordinary course of business that impose encumbrances or restrictions of the nature described in Section 4.12(a)(3) on the property so leased or acquired;
(9) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to joint ventures;
(10) any encumbrance or restriction restrictions on cash or other deposits or net worth imposed by customers under agreements contracts entered into in the ordinary course of business;; and
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of senior management or the Board of Directors of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 2 contracts
Sources: Indenture (Pilgrims Pride Corp), Indenture (Pilgrims Pride Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral DocumentsSecurity Documents and the First Lien Intercreditor Agreement, any Additional Intercreditor Agreement and Agreements or the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments, including with respect to intellectual property;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations or Cash Management Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Qualified Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility Financing or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith, or this Indenture as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where where, in the case of clause (ii), either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (1) to (16) of this Section 3.4(b) above or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (1) to (16) of this Section 3.4(b) above or this clause (1716); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company); or
(17) any Restricted Payment not prohibited by Section 3.3, including any Permitted Payment and any Permitted Investment.
Appears in 2 contracts
Sources: Indenture (Pactiv Evergreen Inc.), Indenture (Pactiv Evergreen Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
Company, (2ii) make any loans or advances to the Company or any Restricted Subsidiary; or
(3iii) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; (provided that (x) the dividend or liquidation priority between classes of Capital Stock, or subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall obligation, will not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness), including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibitexcept any encumbrance or restriction:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or entered into on or prior to the Issue Date, any Credit Facility, this Indenture or the Notes;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (other than Capital Stock or except to the extent that such Indebtedness Incurred as consideration inwas incurred to finance, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with with, such transaction) and outstanding on such dateacquisition, merger or consolidation); provided that, that for the purposes of this clause (42), if another a Person other than the Company is the Successor CompanyCompany with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Company or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the such Successor Company;
(53) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 6.8 or this clause (3) (an “Initial Agreement”) or contained in any encumbrance amendment, supplement or restriction: other modification to an Initial Agreement (ian “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement; contract, (iiB) contained in mortgagesby virtue of any transfer of, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company transfer, option or right with respect to, or Lien on, any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such any Restricted Subsidiary that are subject not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to such agreement, the payment rights arising thereunder or extent restricting the proceeds thereof and does not extend to any other asset or property transfer of the Company property or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or subject thereto, (ivD) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
, (6E) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(75) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(96) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(107) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 3.2 6.6 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and where either (Ax) the Company determines at the time of entry into such agreement or instrument in good faith that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the Company’s ability to make principal or interest payments on the Notes or (By) such encumbrance or restriction applies only during the continuance if a default occurs in respect of a default payment or financial covenant relating to such agreement Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or instrument;
(15C) any encumbrance relating to Indebtedness of or restriction existing a Financing Disposition by reason or to or in favor of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)Special Purpose Entity.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Sally Beauty Holdings, Inc.), Supplemental Indenture (Sally Investment Holdings LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company Parent Guarantor shall not, and shall not permit any Restricted Subsidiary (that is not the Company) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations Obligations owed to the Company Parent Guarantor or any Restricted Subsidiary;
(2) make any loans or advances to the Company Parent Guarantor or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Parent Guarantor or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Company Parent Guarantor or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section SECTION 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility Facility, (b) the Senior Notes or (bc) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenturethe Note Documents, the Notes, the Notes Collateral Documents, any Intercreditor Agreement Documents and the Note GuaranteesIntercreditor Agreements;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, amalgamated, consolidated or otherwise combined with or into the Company Parent Guarantor or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company Parent Guarantor or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Parent Guarantor or was merged, amalgamated, consolidated or otherwise combined with or into the Company Parent Guarantor or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date, which encumbrance or restriction only applies to the Person so acquired and its Subsidiaries (or their respective property or assets) or the property or assets so acquired; provided that, for the purposes of this clause (4)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Parent Guarantor or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: :
(i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; ;
(ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture and the Collateral Documents or securing Indebtedness of the Company Parent Guarantor or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; ;
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company Parent Guarantor or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company Parent Guarantor or such Restricted Subsidiary that are 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 Parent Guarantor or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or or
(iv) pursuant to customary provisions restricting dispositions of real property Real Property interests set forth in any reciprocal easement agreements of the Company Parent Guarantor or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this IndentureIndenture and the Collateral Documents, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company Parent Guarantor or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Swap Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section SECTION 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility[Reserved];
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section SECTION 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, the ABL Credit Agreement or the Senior Notes Indenture, in each case, together with the security documents associated therewith as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the CompanyParent Guarantor) and where where, in the case of clause (ii), either (Aa) the Company Parent Guarantor determines in good faith at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal principal, premium (if applicable) or interest payments on the Notes or (Bb) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien Lien permitted under Section SECTION 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1716) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (1615) of this Section SECTION 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (1615) of this Section SECTION 3.4(b) or this clause (1716); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the CompanyParent Guarantor).
Appears in 2 contracts
Sources: Indenture (iHeartMedia, Inc.), Indenture (Broader Media Holdings, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) hereof shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility and the Unsecured Notes Indenture or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Completion Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement Note Documents and the Note Guaranteesnote documents related to the Unsecured Notes;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under or otherwise not prohibited by this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under or otherwise not prohibited by this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past or industry practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under or otherwise not prohibited by this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past or industry practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Completion Date pursuant to Section 3.2 hereof that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Qualified Securitization Facility, Floor Plan Facility Financing or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred incurred subsequent to the Issue Date pursuant to Section 3.2 hereof if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith, or this Indenture as in effect on the Issue Date or Completion Date or (ii) in comparable financings (as determined in good faith by the Company) and where where, in the case of clause (ii), either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry3.6 hereof; or
(1716) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (1615) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (1615) of this Section 3.4(b) or this clause (1716); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 2 contracts
Sources: Indenture (Beach Acquisition Co Parent, LLC), Indenture (Skechers Usa Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall and any Permitted Affiliate Parent will not, and shall will not permit any Restricted Subsidiary (other than the Loan Parties) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Loan Parties) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary;
(2) make any loans or advances to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (y) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The preceding provisions of Section 3.4(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or at, entered into or substantially agreed on the 2020 Amendment Effective Date, including, without limitation, this Agreement, the Existing Senior Secured Notes Indenture, the Intercreditor Agreement and any related documentation, in each case, as in effect, or prior to substantially agreed, on the Issue 2020 Amendment Effective Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary, or was designated as a Permitted Affiliate Parent, an Affiliate Subsidiary or a Restricted Subsidiary (or on became a Restricted Subsidiary as a result thereof), or which such agreement or instrument is assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary or was merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided thatthat any such encumbrance or restriction shall not extend to any assets or property of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary other than the assets and property so acquired; provided, further, that for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(53) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3) or contained in any amendment, supplement, restatement or other modification to an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3); provided that the encumbrances and restrictions, taken as a whole, with respect to the Company, such Permitted Affiliate Parent or such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Finance Parties than the encumbrances and restrictions contained in such agreements referred to in Section 4.08(b)(1) or Section 4.08(b)(2) (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(4) in the case of Section 4.08(a)(3), any encumbrance or restriction: :
(iA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreement; contract;
(iiB) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Indenture or Agreement securing Indebtedness of the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; ;
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; or
(D) contained in operating leases for real property and restricting only the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(5) any encumbrance or restriction pursuant to (A) Purchase Money Obligations for property acquired in the ordinary course of business or (B) Capitalized Lease Obligations permitted under this Agreement, in each case, that either (i) impose encumbrances or restrictions of the nature described in Section 4.08(a)(3) on the property so acquired or (ii) are customary in connection with Purchase Money Obligations, Capitalized Lease Obligations and mortgage financings for property acquired in the ordinary course of business (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(6) any encumbrance or restriction pursuant to arising in connection with, or any contractual requirement Incurred with respect to, any Purchase Money Obligations and Capitalized Lease Obligations permitted under this IndentureNote, other Indebtedness or a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in each casethe good faith determination of the Board of Directors or senior management of the Company or a Permitted Affiliate Parent, that impose encumbrances or restrictions on the subject propertyare necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction (A) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement (or option to enter into such agreement) entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositiondisposition or (B) arising by reason of contracts for the sale of assets, including customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale and disposition of all or substantially all assets of such Subsidiary or conditions imposed by governmental authorities or otherwise resulting from dispositions required by governmental authorities;
(8) (A) customary provisions in leases, licenses, shareholder asset sale agreements, joint venture agreementsagreements and other agreements and instruments entered into by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in the ordinary course of business or (B) in the case of a joint venture or a Subsidiary that is not a Wholly-Owned Subsidiary, encumbrances, restrictions and conditions imposed by its organizational documents and or any related shareholders, joint venture or other similar agreements and instruments(including restrictions on the payment of dividends or other distributions);
(9) encumbrances or restrictions arising or existing by reason of applicable law Law or any applicable rule, regulation or regulation, governmental license, order, concession, franchise, or permit or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging ObligationsCurrency Agreements, Commodity Agreements or Interest Rate Agreements;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue 2020 Amendment Effective Date pursuant to Section 3.2 4.09 if (A) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders Finance Parties than the encumbrances and restrictions contained in this Agreement, the other Loan Documents, and any related documentation, in each case, as in effect on the 2020 Amendment Effective Date (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent) or (B) such encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Finance Parties than is customary in comparable financings (as determined conclusively in good faith by the CompanyBoard of Directors or senior management of the Company or a Permitted Affiliate Parent) and where and, in each case, either (Ai) the Company determines at the time of entry into such agreement or instrument a Permitted Affiliate Parent reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the Company’s Borrowers’ ability to make principal or interest payments on the Notes Loans as and when they come due or (Bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance if a default occurs in respect of a default payment or financial covenant relating to such agreement or instrumentIndebtedness;
(1513) any encumbrance or restriction existing arising by reason of any lien permitted under Section 3.6;customary non-assignment provisions in agreements; and
(1614) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Intercreditor Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 2 contracts
Sources: Additional Facility Joinder Agreement (Liberty Latin America Ltd.), Amendment Agreement (Liberty Latin America Ltd.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in cash or otherwise on respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company or any other Restricted Subsidiary;
(2b) make any loans or advances to the Company or any other Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets Property to the Company or any other Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall . The foregoing limitations will not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibitapply:
(1) any encumbrance or restriction pursuant with respect to clauses (a) any Credit Facility or ), (b) any other agreement or instrument and (c), to restrictions:
(A) in effect at or entered into on or prior to the Issue Date;
(2B) any encumbrance or relating to Debt of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable was not created in connection with such Restricted Subsidiary’s status (or the status in anticipation of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (iC) that restricts result from the Refinancing of Debt Incurred pursuant to an agreement referred to in a customary manner the subletting, assignment clause (1)(A) or transfer of any property (B) above or asset that is subject to a lease, license in clause (2)(A) or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (iiB) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbelow; provided that such restriction is no less favorable to the Holders in any material respect, as reasonably determined by the Board of Directors (as evidenced by a Board Resolution), than those under the agreement prohibits evidencing the encumbrance Debt so Refinanced;
(D) resulting from the Incurrence of solely any Debt permitted pursuant to Section 4.03; provided that (i) the property or assets restriction is no less favorable to the Holders in any material respect, as reasonably determined by the Board of Directors (as evidenced by a Board Resolution), than the restrictions of the same type contained in this Indenture and (ii) the Board of Directors determines (as evidenced by a Board Resolution) in good faith that such restrictions will not impair the ability of the Company or such Restricted Subsidiary that are subject to such agreement, make payments of principal and interest on the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted SubsidiarySecurities when due;
(6E) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;law; or
(10F) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant contractual requirements incurred with respect to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted Qualified Receivables Transactions relating exclusively to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or a Receivables Facility Entity that, in the good faith determination of the CompanyBoard of Directors, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or customary for Qualified Receivables Facility;Transactions; and
(142) any encumbrance or restriction arising pursuant with respect to an agreement or instrument clause (c) only, to restrictions:
(A) relating to any Indebtedness, Debt that is permitted to be Incurred subsequent to the Issue Date and secured pursuant to Section 3.2 if Sections 4.03 and 4.05 that limit the encumbrances and restrictions contained in any right of the debtor to dispose of the Property securing such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings Debt;
(as determined in good faith by the CompanyB) and where either (A) the Company determines encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary, so long as such restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrumentacquisition;
(15C) any encumbrance resulting from customary provisions restricting subletting or restriction existing by reason assignment of any lien permitted under Section 3.6;
(16) any encumbrance leases or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing provisions in the automobile industryother agreements that restrict assignment of such agreements or rights thereunder; or
(17D) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and customary restrictions contained in agreements relating to the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement sale or other modification relates (as determined in good faith by disposition of Property limiting the Company)transfer of such Property pending the closing of such sale.
Appears in 2 contracts
Sources: Indenture (Rite Aid Corp), Indenture (Rite Aid Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary (other than Excluded Project Subsidiaries) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than Excluded Project Subsidiaries) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any of its Restricted Subsidiaries (other than Excluded Project Subsidiaries), or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sellother than Excluded Project Subsidiaries), lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock;
(y2) make any loans or advances to the Company or any Restricted Subsidiary (other than Excluded Project Subsidiaries), it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute make loans or advances; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (other than any Excluded Project Subsidiary) (it being understood that such an encumbrance transfers shall not include any type of transfer described in clause (1) or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture(2) above).
(b) The provisions of Section 3.4(a4.09(a) shall not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(1) any encumbrance contractual encumbrances or restriction restrictions pursuant to (a) any Credit Debt Facility and related documentation and other agreements or (b) any other agreement or instrument instruments in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Indenture and the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or other instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries in existence at the time of such acquisition, which encumbrance or restriction is a party entered into in not applicable to any Person, or the ordinary course properties or assets of business; provided that such agreement prohibits any Person, other than the encumbrance of solely Person and its Subsidiaries, or the property or assets of the Company or such Restricted Subsidiary that are subject to such agreementPerson and its Subsidiaries, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or so acquired (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiaryincluding after-acquired property);
(64) any encumbrance or restriction pursuant in the case of Section 4.09(a)(3), Liens permitted to Purchase Money Obligations be Incurred under Section 4.05 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(5) purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations permitted under this the Indenture, in each case, that impose encumbrances or restrictions of the nature described in Section 4.09(a)(3) on the subject propertyproperty so acquired;
(76) any encumbrance or restriction imposed contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the direct or indirect sale or disposition to a Person of all or substantially all a portion of the Capital Stock or assets of such Subsidiary;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) any customary provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(9) any customary provisions in leases, subleases or licenses and other agreements entered into by the Company or any Restricted Subsidiary (or in the property or assets that are subject to such restriction) pending the closing ordinary course of such sale or dispositionbusiness;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(910) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(1011) applicable law or any applicable rule, regulation or order;
(12) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into effected in connection with a Qualified Receivables Financing that, in the ordinary course good faith determination of businessthe Issuers, is necessary or advisable to effect such Qualified Receivables Financing, as applicable;
(1113) any encumbrance or restriction pursuant to Hedging Obligations;
(12) contained in other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred the Company or issued subsequent to the Issue Date pursuant to Section 3.2 any Restricted Subsidiary that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be is Incurred subsequent to the Issue Date pursuant to Section 3.2 if the 4.03; provided that (i) such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Company’s ability to make anticipated principal or interest payments on the Notes (as determined by the Company in good faith) or (ii) such encumbrances and restrictions contained in any agreement or instrument taken as a whole are not materially less favorable to the Holders holders of the Notes, taken as a whole, than the encumbrances and restrictions contained in comparable financings the Indenture or the Senior Credit Facility as of the Issue Date (as determined by the Company in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;faith); and
(1514) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement restatement, modification, renewal, supplement, refunding, replacement or other modification to refinancing of an agreement referred to in clauses (1) to through (1613) of this Section 3.4(b4.09(b) or this clause (1714); provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to good faith judgment of the Holders Company, not materially more restrictive, taken as a whole whole, than the encumbrances and restrictions contained the agreements referred to in clauses (1) through (13) of this Section 4.09(b) existing on the Initial Agreement Issue Date or Initial Agreements to which the date such refinancing Restricted Subsidiary became a Restricted Subsidiary or amendmentwas merged into a Restricted Subsidiary, supplement or other modification relates (as determined in good faith by the Company)whichever is applicable.
Appears in 2 contracts
Sources: Seventh Supplemental Indenture (Covanta Holding Corp), Sixth Supplemental Indenture (Covanta Holding Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the Company or any a Restricted Subsidiary;
, (2b) make any loans or advances to the Company or any other Restricted Subsidiary; or
Subsidiary or (3c) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends , except for such encumbrances or liquidating distributions prior to dividends restrictions existing under or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibitreason of:
(1) any encumbrance or restriction pursuant to (a) any the Credit Facility Agreement or (b) any other agreement or instrument as in effect at or entered into on or prior to the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, however, that such amendments, restatements, renewals, replacements or refinancings are no more materially restrictive with respect to such dividend and other payment restrictions than those contained in the Credit Agreement or such agreement (or, if more restrictive, than those contained in this Indenture) immediately prior to any such amendment, restatement, renewal, replacement or refinancing;
(2b) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10c) any instrument governing Indebtedness or Capital Stock of an Acquired Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition); provided, however, that such restriction is not applicable to any Person, or the properties or assets of any Person, other than the Acquired Person;
(d) by reason of customary non-assignment provisions in leases or other agreements entered into the ordinary course of business and consistent with past practices;
(e) Finance Lease Obligations and Purchase Money Indebtedness that only impose restrictions on the property so acquired;
(f) an agreement for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary; provided, however, that such restriction is only applicable to such Restricted Subsidiary or assets, as applicable, and such sale or disposition otherwise is permitted under Section 10.16;
(g) Refinancing Indebtedness permitted under this Indenture; provided, however, that the restrictions contained in the agreements governing such Refinancing Indebtedness are no more materially restrictive in the aggregate than those contained in the agreements governing the Indebtedness being refinanced immediately prior to such refinancing;
(h) customary provisions in joint venture agreements, sale-leaseback agreements, partnership agreements, limited liability company operating agreements and other similar agreements;
(i) any encumbrance or restriction on cash of (A) a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary or other deposits or net worth imposed by customers under agreements entered into (B) an Equipment Subsidiary effected in the ordinary course of businessconnection with a Qualified Equipment Financing; provided, however, that such restrictions apply only to such Equipment Subsidiary;
(11j) any encumbrance or restriction pursuant to Hedging ObligationsRestricted Payment not prohibited by Section 10.10 and any Permitted Investment;
(12k) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries Indebtedness secured by a Lien otherwise permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 10.13 and Section 10.17 that impose restrictions solely on limit the Foreign Subsidiaries party thereto or their Subsidiariesright of the debtor to dispose of the assets securing such Indebtedness;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14l) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to by Section 3.2 10.13 (A) if the encumbrances encumbrance and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders holders of the Notes than the encumbrances and restrictions contained in comparable financings this Indenture or the Credit Agreement in effect as of the Issue Date (as determined in good faith by the Company) and where either or (AB) the Company determines at the time of entry into such agreement or instrument that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the Company’s ability to make principal or and interest payments on the Notes as and when they become due or (BC) such encumbrance or restriction applies only during the continuance if a default occurs in respect of a default payment or a financial covenant relating to such agreement or instrumentIndebtedness;
(15m) any encumbrance restrictions on cash or restriction existing other deposits or net worth imposed by reason of any lien permitted customers under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing contracts entered into in the automobile industryordinary course of business; or
(17n) any encumbrance encumbrances or restriction pursuant to an agreement or instrument effecting a refinancing restrictions of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument the type referred to in clauses Section 10.11(a), (1b) to and (16c) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of this Section 3.4(b) the contracts, instruments or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement obligations referred to in clauses Section 10.11(a) through (1) to (16) of this Section 3.4(b) or this clause (17m); provided, however, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the encumbrances and restrictions good faith judgment of the Company, no more materially restrictive with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole dividend and other payment restrictions than the encumbrances and restrictions those contained in the Initial Agreement dividend or Initial Agreements other payment restrictions prior to which such refinancing or amendment, supplement modification, restatement, renewal, increase, supplement, refunding, replacement or other modification relates refinancing. Notwithstanding the foregoing, neither (a) customary provisions restricting subletting or assignment of any lease entered into in the ordinary course of business, consistent with past practice, nor (b) Liens permitted under this Indenture, shall in and of themselves be considered a restriction on the ability of the applicable Restricted Subsidiary to transfer such agreements or assets, as determined in good faith by the Company)case may be.
Appears in 2 contracts
Sources: Indenture (Terex Corp), Indenture (Terex Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall Parent Guarantor will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not the Issuer or a Subsidiary Guarantor to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Parent Guarantor or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(y2) make any loans or advances to the Parent Guarantor or any Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Company Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); provided further that or
(3) sell, lease or transfer any of its property or assets to the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this IndentureParent Guarantor or any Restricted Subsidiary.
(b) The preceding provisions of Section 3.4(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other by reason of an agreement or instrument in effect at or entered into on or prior to the Issue Date, including, without limitation, this Indenture as in effect on such date;
(2) any encumbrance or restriction with respect to a Person pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status by reason of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of Incurred by a Person, entered into Person on or before the date on which such Person was acquired by the Parent Guarantor or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a another Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became was acquired by the Parent Guarantor or a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such the transaction) and outstanding on such date; provided that, for that any such encumbrance or restriction shall not extend to any assets or property of the purposes of this clause (4), if another Person is Parent Guarantor or any other Restricted Subsidiary other than the Successor Company, any Subsidiary thereof or agreement or instrument assets and property of such Person acquired Person;
(3) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or any such Subsidiary shall be deemed acquired in the aggregate, detract from the value of, or assumed by from the Company ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor or any Restricted Subsidiary when in any manner material to the Parent Guarantor or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Person becomes Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Successor CompanyUnrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary;
(5) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies to such Foreign Subsidiary and its Subsidiaries only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5) or clause (12) of this Section 3.4(b) or this clause (6) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (5) or clause (12) of this Section 3.4(b) or this clause (6); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the Holders than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or refinanced;
(7) in the case of Section 3.4(a)(3), any encumbrance or restriction: :
(iA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a leaselease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract or agreementcontract, or the assignment or transfer of any leasesuch lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract or agreement; contract;
(iiB) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Company Parent Guarantor or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; ;
(iiiC) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement creating Hedging Obligations permitted from time to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or time under this Indenture;
(ivD) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Parent Guarantor or any Restricted Subsidiary;
(6E) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(F) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(8) any encumbrance or restriction pursuant to Purchase Money Obligations contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in Section 3.4(a)(3) on the subject propertyproperty so acquired;
(79) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all a portion of the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) 10) any customary provisions encumbrances or restrictions imposed pursuant to any agreement of the type described in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instrumentsthe definition of “Permitted Business Investment”;
(911) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(1012) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors or a responsible financial officer of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreements and in this Indenture as in effect on the Issue Date;
(13) the issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(14) supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar documents and agreements;
(15) restrictions on cash or other deposits or net worth imposed by customers under agreements contracts entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;; and
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing contained in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing Senior Secured Credit Agreements and the Senior Notes as in effect as of Indebtedness Incurred pursuant tothe Issue Date, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained and in any amendmentamendments, supplement modifications, restatements, renewals, increases, supplements, refundings, replacements or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or this clause (17); provided, however, that the refinancings shall not modify such encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Senior Secured Credit Agreements to which such refinancing or amendment, supplement or other modification relates (and the Senior Notes as determined in good faith by effect on the Company)Issue Date.
Appears in 2 contracts
Sources: Indenture (Ultra Petroleum Corp), Exchange Agreement (Ultra Petroleum Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company Holdings shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Holdings or any Restricted Subsidiary;
(2ii) make any loans or advances to the Company Holdings or any Restricted Subsidiary; or
(3iii) sell, lease or transfer any of its property or assets to the Company Holdings or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Holdings or any Restricted Subsidiary to other Indebtedness Incurred by the Company Holdings or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a7.08(a) shall not prohibit:
(1i) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue DateClosing Date in connection with the Transactions;
(2ii) any encumbrance or restriction pursuant to this IndentureAgreement, the Notes, the Notes Collateral Documents, any Intercreditor Agreement Documents and the Note Guarantees;
(3iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary[reserved];
(4iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, amalgamated, consolidated or otherwise combined with or into the Company Holdings or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company Holdings or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Holdings or was merged, amalgamated, consolidated or otherwise combined with or into the Company Holdings or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4iv), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Holdings or any Restricted Subsidiary when such Person becomes the Successor Company;
(5v) any encumbrance or restriction: :
(iA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; ;
(iiB) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture Agreement and the Collateral Documents or securing Indebtedness of the Company Holdings or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; ;
(iiiC) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company Holdings or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company Holdings or such Restricted Subsidiary that are 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 Holdings or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or or
(ivD) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Holdings or any Restricted Subsidiary;
(6vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this IndentureAgreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company Holdings or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) viii) customary provisions in leases, licenses, shareholder equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11xi) any encumbrance or restriction pursuant to Hedging Obligations;
(12xii) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Closing Date pursuant to the provisions of Section 3.2 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13xiii) restrictions created in connection with any Qualified Securitization Facility, Floor Plan Facility Financing or Receivables Facility that, in the good faith determination of the CompanyBorrower, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14xiv) any encumbrance or restriction arising pursuant to an agreement or instrument relating (which, if it relates to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent pursuant to the Issue Date pursuant to provisions of Section 3.2 7.03 hereof) if (i) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders Lenders than (a) the encumbrances and restrictions contained in the this Agreement, together with the security documents associated therewith or (b) in comparable financings (as determined in good faith by the CompanyBorrower) and where or (ii) either (Aa) the Company Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the CompanyBorrower’s ability to make principal or interest payments on the Notes Secured Obligations or (Bb) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(15xv) any encumbrance or restriction existing by reason of any lien Lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry7.01 hereof; or
(17xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1i) to (16xv) of this Section 3.4(b7.08(b) or this clause (16xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1i) to (16xv) of this Section 3.4(b7.08(b) or this clause (17xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the CompanyBorrower).
Appears in 2 contracts
Sources: Credit Agreement (Windstream Parent, Inc.), Credit Agreement (Windstream Parent, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary that is not a Subsidiary Guarantor to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1directly or indirectly) to (a) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and shall not be deemed a restriction on the ability to make distributions on Capital Stock), (yb) make any loans or advances to the Company (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restriction; provided further that advances) or (c) transfer any of its property or assets to the issuance of such Preferred Stock and the incurrence of such IndebtednessCompany, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibitexcept:
(1) any encumbrance or restriction pursuant with respect to clauses (a) any Credit Facility or ), (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;and (c),
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4A) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the Issue Date;
(B) any encumbrance or restriction with respect to a Person or Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness of a Person, entered into Incurred by such Restricted Subsidiary on or before prior to the date on which such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionCompany) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17C) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses Section 4.05(1)(A) or (1) to (16) of this Section 3.4(bB) or this clause (17C) or contained in any amendment to an agreement referred to in Section 4.05(1)(A) or (B) or this clause (C); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or instrument amendment are no less favorable on the whole to the Securityholders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;
(D) any material encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(E) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness permitted to be Incurred under this Indenture, or any agreement pursuant to which such Indebtedness was issued;
(F) restrictions or conditions, governing any Indebtedness incurred in connection with Permitted Securitizations that were permitted under Section 4.03(b)(13) if such restrictions or conditions apply only to the Receivables and the Related Assets that are the subject of the Permitted Securitization, and restrictions or conditions imposed on any SPE Subsidiary in connection with any Permitted Securitization;
(G) provisions limiting the disposition or distribution of assets or property or transfer of Capital Stock in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, limited liability company organizational documents, and other similar agreements entered into in the ordinary course of business, consistent with past practice or with the approval of the Company's Board of Directors, which limitation is applicable only to the assets, property or Capital Stock that are the subject of such agreements;
(H) restrictions on cash, Temporary Cash Investment or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(I) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(J) any restriction arising under applicable law, regulation or order; and
(K) any encumbrance or restriction existing under or by reason of the Credit Facilities;
(2) with respect to clause (c) only,
(A) any encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(B) any encumbrance or restriction contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages;
(C) non-assignment provisions or subletting restrictions in contracts, leases and licenses entered into in the ordinary course of business; and
(D) encumbrances on property that exist at the time the property was acquired by the Company or a Restricted Subsidiary, provided such encumbrances were not put in place in anticipation of such acquisition; and
(3) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in paragraphs (1) and (2) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings (other than with respect to the Holders taken as a Credit Facilities) are, in the good faith judgment of the Company, no more restrictive on the whole with respect to such dividend and other payment restrictions than the encumbrances and restrictions those contained in the Initial Agreement dividend or Initial Agreements other payment restrictions prior to which such refinancing or amendment, supplement modification, restatement, renewal, increase, supplement, refunding, replacement or other modification relates (as determined in good faith by the Company)refinancing.
Appears in 2 contracts
Sources: Indenture (Westborn Service Center, Inc.), Indenture (Westborn Service Center, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted SubsidiarySubsidiary of the Company (provided, however, that (i) the priority that any series of Preferred Stock of a Restricted Subsidiary of the Company has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (ii) the subordination of Indebtedness owed to the Company or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2) make any loans or advances to the Company or a Restricted Subsidiary of the Company (it being understood that the subordination of loans or advances made to the Company or any Restricted SubsidiarySubsidiary to other Indebtedness incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any a Restricted Subsidiary of the Company. However, the preceding restrictions of this Section 3.4 will not apply to other Indebtedness Incurred encumbrances or restrictions existing under or by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibitreason of:
(1) any encumbrance or restriction pursuant to (a) in any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue DateDate (including the Credit Agreement);
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement Securities and the Note Subsidiary Guarantees;
(3) any encumbrance or restriction pursuant with respect to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such a Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction the Company pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into incurred by such Restricted Subsidiary on or before prior to the date on which such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any became a Restricted Subsidiary in connection with an acquisition of assets the Company (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionCompany) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(174) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing Refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses clause (1), (2) to or (163) of this Section 3.4(b) paragraph or this clause (174) or contained in any amendment to an agreement referred to in clause (1), (2) or (3) of this paragraph or this clause (4); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or instrument amendment are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in the Initial Agreement or Initial Agreements to which such refinancing or amendmentagreements, supplement or other modification relates (as determined in good faith by the Company;
(a) customary non-assignment provisions in any contract, license, lease or sale or exchange agreement and (b) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers or lessors under contracts or leases, in the case of each of clauses (a) and (b), entered into in the ordinary course of business;
(6) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary of the Company to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(7) any restriction with respect to a Restricted Subsidiary of the Company imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(8) any encumbrance or restriction in connection with a Qualified Receivables Transaction;
(9) Refinancing Indebtedness; provided that the encumbrances or restrictions contained in the agreements governing such Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined in good faith by the Company;
(10) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 3.6 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary of the Company that is not a Domestic Subsidiary;
(13) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(14) agreements governing Hedging Contracts, Interest Rate Agreements and Currency Agreements incurred in the ordinary course of business;
(15) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary of the Company; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary of the Company and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary of the Company other than the assets and property of such Unrestricted Subsidiary; and
(16) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (1) through (15) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Company. Notwithstanding the foregoing, the Company and its Restricted Subsidiaries shall nonetheless retain the ability to incur Liens to the extent provided for under Section 3.6 (including, without limitation, Permitted Liens) and any Permitted Liens which may refer to one or more of the above covenants shall be interpreted as though such covenant(s) continued to be applicable subsequent to the termination thereof pursuant to the terms of this Indenture.
Appears in 2 contracts
Sources: Indenture (CNX Resources Corp), Indenture (CNX Resources Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
Company, (2ii) make any loans or advances to the Company or any Restricted Subsidiary; or
(3iii) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; (provided that (x) the dividend or liquidation priority between classes of Capital Stock, or subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall obligation, will not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness), including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibitexcept any encumbrance or restriction:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or entered into on or prior to the Issue Date, any Credit Facility, this Indenture (including the Note Security Documents) or the Notes;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (other than Capital Stock or except to the extent that such Indebtedness Incurred as consideration inwas incurred to finance, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with with, such transaction) and outstanding on such dateacquisition, merger or consolidation); provided that, that for the purposes of this clause (42), if another a Person other than the Company is the Successor CompanyCompany with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Company or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the such Successor Company;
(53) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any encumbrance amendment, supplement or restriction: other modification to an Initial Agreement (ian “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement; contract, (iiB) contained in mortgagesby virtue of any transfer of, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company transfer, option or right with respect to, or Lien on, any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such any Restricted Subsidiary that are subject not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to such agreement, the payment rights arising thereunder or extent restricting the proceeds thereof and does not extend to any other asset or property transfer of the Company property or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or subject thereto, (ivD) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
, (6E) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations or Bank Products Obligations;
(75) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(96) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(107) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 3.2 407 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and where either (Ax) the Company determines at the time of entry into such agreement or instrument in good faith that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the Company’s ability to make principal or interest payments on the Notes or (By) such encumbrance or restriction applies only during the continuance if a default occurs in respect of a default payment or financial covenant relating to such agreement Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or instrument;
(15C) any encumbrance relating to Indebtedness of or restriction existing a Financing Disposition by reason or to or in favor of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)Special Purpose Entity.
Appears in 2 contracts
Sources: Indenture (Unistrut International Holdings, LLC), Indenture (Unistrut International Holdings, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall and any Permitted Affiliate Parent will not, and shall will not permit any Restricted Subsidiary (other than the Borrowers) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Borrowers) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(2) make any loans or advances to the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (y) the subordination of (including but not 50 limited to, the application of any standstill requirements to) loans or advances made to the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The preceding provisions of Section 3.4(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or entered into on or prior to the Issue First Amendment Effective Date, including, without limitation, this Agreement, the Columbus Senior Notes Indenture, the 2019 Sterling Bonds Trust Deed, the Existing Senior Notes Indenture, the Existing Intercreditor Agreement, the other Loan Documents, the Collateral Documents thereunder and any related documentation, in each case, as in effect on the First Amendment Effective Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary or was merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; , provided thatthat any such encumbrance or restriction shall not extend to any assets or property of the Company, a Permitted Affiliate Parent or any other Restricted Subsidiary other than the assets and property so acquired and provided, further, that for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(53) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3) or contained in any amendment, supplement, restatement or other modification to an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3); provided, however, that the encumbrances and restrictions, taken as a whole, with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Finance Parties than the encumbrances and restrictions contained in such agreements referred to in Section 4.08(b)(1) or Section 4.08(b)(2) (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(4) in the case of Section 4.08(a)(3), any encumbrance or restriction: :
(iA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreement; contract;
(iiB) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Indenture or Agreement securing Indebtedness of the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; ;
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; or
(D) contained in operating leases for real property and restricting only the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(5) any encumbrance or restriction pursuant to (A) Purchase Money Obligations for property acquired in the ordinary course of business or (B) Capitalized Lease Obligations permitted under this Agreement, in each case, that either (i) impose encumbrances or restrictions of the nature described in Section 4.08(a)(3) on the property so acquired or (ii) are customary in connection with Purchase Money Obligations, Capitalized Lease Obligations and mortgage financings for property acquired in the ordinary course of business;
(6) any encumbrance or restriction pursuant to arising in connection with, or any contractual requirement incurred with respect to, any Purchase Money Obligations and Capitalized Lease Obligations permitted under this IndentureNote, other Indebtedness or a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in each casethe good faith determination of the Board of Directors or senior management of the Company or a Permitted Affiliate Parent, that impose encumbrances or restrictions on the subject propertyare necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction (A) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement (or option to enter into such contract) entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositiondisposition or (B) arising by reason of contracts for the sale of assets, including customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale and disposition of all or substantially all assets of such Subsidiary or conditions imposed by governmental authorities or otherwise resulting from dispositions required by governmental authorities;
(8) (A) customary provisions in leases, licenses, shareholder asset sale agreements, joint venture agreementsagreements and other agreements and instruments entered into by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in the ordinary course of business or (B) in the case of a Subsidiary that is not a Wholly-Owned Subsidiary, encumbrances, restrictions and conditions imposed by its organizational documents and or any related shareholders, joint venture or other similar agreements and instruments(including restrictions on the payment of dividends or other distributions);
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or regulation, governmental license, order, concession, franchise, or permit or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging ObligationsCurrency Agreements, Commodity Agreements or Interest Rate Agreements;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue First Amendment Effective Date pursuant to Section 3.2 4.09 if (A) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders Finance Parties than the encumbrances and restrictions contained in this Agreement, the Existing Intercreditor Agreement, the other Loan Documents, and any related documentation, in each case, as in effect on the First Amendment Effective Date (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent) or (B) such encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Finance Parties than is customary in comparable financings (as determined conclusively in good faith by the CompanyBoard of Directors or senior management of the Company or a Permitted Affiliate Parent) and where and, in each case, either (Ai) the Company determines at the time of entry into such agreement or instrument a Permitted Affiliate Parent reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the Company’s Borrowers’ ability to make principal or interest payments on the Notes Loans as and when they come due or (Bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance if a default occurs in respect of a default payment or financial covenant relating to such agreement or instrumentIndebtedness;
(1513) any encumbrance or restriction existing arising by reason of any lien permitted under Section 3.6;customary non-assignment provisions in agreements; and
(1614) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance New Intercreditor Agreement or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant toentered into in connection with the Group Refinancing Transactions (including, or that otherwise refinanceswithout limitation, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that indenture governing the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the CompanyNew Senior Notes).
Appears in 2 contracts
Sources: Credit Agreement (Liberty Latin America Ltd.), Credit Agreement (Liberty Latin America Ltd.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
Company, (2b) make any loans or advances to the Company or any Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such IndebtednessCompany, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibitexcept:
(1) any encumbrance or restriction pursuant with respect to clauses (a) any Credit Facility or ), (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;and (c),
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3A) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order an agreement in effect at or requirement applicable in connection with such Restricted Subsidiary’s status (or entered into on the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance SubsidiaryIssue Date;
(4B) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred by such Restricted Subsidiary on or before prior to the date on which such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionCompany) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6C) any encumbrance or restriction pursuant to Purchase Money Obligations any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of the agreement referred to in clauses (A) and Capitalized Lease Obligations permitted under this Indenture(B) above; provided, in each casehowever, that impose such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is no more restrictive, as reasonably determined by the Company, with respect to such encumbrances and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or restrictions on the subject propertyrefinancing;
(7D) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9E) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements contracts entered into in the ordinary course of business;
(11F) any encumbrance limitation or restriction pursuant prohibition on the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements, which limitation or prohibition is applicable only to Hedging Obligationsthe assets that are the subject of such agreements;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15G) any encumbrance or restriction existing under or by reason of any lien permitted under Section 3.6;contractual requirements of a Receivables Entity in connection with a Qualified Receivables Transaction, provided that such restrictions apply only to such Receivables Entity; and
(162) with respect to clause (c) only,
(A) any encumbrance or restriction pursuant consisting of customary nonassignment provisions in leases governing leasehold interests to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industryextent such provisions restrict the transfer of the lease or the property leased thereunder; orand
(17B) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in Capital Lease Obligations, any amendmentagreement governing Purchase Money Indebtedness, supplement security agreements or other modification mortgages securing Indebtedness of a Restricted Subsidiary to an agreement referred to in clauses (1) to (16) the extent such encumbrance or restriction restricts the transfer of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect property subject to such Restricted Subsidiary contained in any such agreement Capital Lease Obligations, Purchase Money Indebtedness, security agreements or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)mortgages.
Appears in 2 contracts
Sources: Indenture (Healthsouth Corp), Indenture (Healthsouth Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) hereof shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility and the Secured Indenture or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Completion Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement Note Documents and the Note Guaranteesnote documents related to the Secured Notes;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under or otherwise not prohibited by this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under or otherwise not prohibited by this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past or industry practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under or otherwise not prohibited by this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past or industry practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Completion Date pursuant to Section 3.2 hereof that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Qualified Securitization Facility, Floor Plan Facility Financing or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred incurred subsequent to the Issue Date pursuant to Section 3.2 hereof if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith, or this Indenture as in effect on the Issue Date or Completion Date or (ii) in comparable financings (as determined in good faith by the Company) and where where, in the case of clause (ii), either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry3.6 hereof; or
(1716) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (1615) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (1615) of this Section 3.4(b) or this clause (1716); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 2 contracts
Sources: Indenture (Beach Acquisition Co Parent, LLC), Indenture (Skechers Usa Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (ai) any Credit Facility or (bii) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; or (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where where, in the case of clause(ii), either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1716) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (1615) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (1615) of this Section 3.4(b) or this clause (1716); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 2 contracts
Sources: Indenture (GCP Applied Technologies Inc.), Indenture (W R Grace & Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company Parent Guarantor shall not, and shall not permit any Restricted Subsidiary (that is not the Company) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations Obligations owed to the Company Parent Guarantor or any Restricted Subsidiary;
(2) make any loans or advances to the Company Parent Guarantor or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Parent Guarantor or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Company Parent Guarantor or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section SECTION 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility Facility, (b) the Senior Secured Notes or (bc) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, amalgamated, consolidated or otherwise combined with or into the Company Parent Guarantor or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company Parent Guarantor or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Parent Guarantor or was merged, amalgamated, consolidated or otherwise combined with or into the Company Parent Guarantor or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date, which encumbrance or restriction only applies to the Person so acquired and its Subsidiaries (or their respective property or assets) or the property or assets so acquired; provided that, for the purposes of this clause (4)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Parent Guarantor or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: :
(i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; ;
(ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company Parent Guarantor or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; ;
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company Parent Guarantor or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company Parent Guarantor or such Restricted Subsidiary that are 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 Parent Guarantor or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or or
(iv) pursuant to customary provisions restricting dispositions of real property Real Property interests set forth in any reciprocal easement agreements of the Company Parent Guarantor or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company Parent Guarantor or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Swap Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section SECTION 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility[Reserved];
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section SECTION 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, the ABL Credit Agreement or the Senior Secured Notes Indenture, in each case, together with the security documents associated therewith as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the CompanyParent Guarantor) and where where, in the case of clause (ii), either (Aa) the Company Parent Guarantor determines in good faith at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal principal, premium (if applicable) or interest payments on the Notes or (Bb) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien Lien permitted under Section SECTION 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1716) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (1615) of this Section SECTION 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (1615) of this Section SECTION 3.4(b) or this clause (1716); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the CompanyParent Guarantor).
Appears in 2 contracts
Sources: Indenture (iHeartMedia, Inc.), Indenture (Broader Media, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; ;
(b) provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(bc) The provisions of Section 3.4(a4.08(a) shall hereof will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility (including the Credit Agreement and any ABL Credit Facility) or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on the Issue Date (or prior to otherwise required as of the Issue Date);
(2) any encumbrance or restriction pursuant to this Indenture, the NotesSecurity Documents, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) encumbrances or restrictions arising or existing by reason of applicable law or any encumbrance or restriction pursuant to applicable law, rule, regulation or order order, or requirement, including required by any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryregulatory authority;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: :
(iA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; ;
(iiB) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(1110) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(1411) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 3.2 4.09 hereof if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in comparable financings (the Credit Agreements, together with the security documentation associated therewith as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments effect on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrumentIssue Date;
(1512) any encumbrance or restriction existing by reason of any lien permitted under by Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry4.12 hereof; or
(1713) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, restates, replaces, restructures or refinances, an agreement or instrument referred to in clauses (1) to (1612) of this Section 3.4(b4.08(b) or this clause (1613) (an “Initial Agreement”) or contained in any amendment, supplement supplement, extension, renewal, restatement, replacement, restructuring or other modification to an agreement referred to in clauses (1) to (1612) of this Section 3.4(b4.08(b) or this clause (1713); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
(d) For purposes of determining compliance with this Section 4.08, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions on Capital 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 Company or a Restricted Subsidiary of the Company of other Indebtedness Incurred by the Company or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 2 contracts
Sources: Indenture (Urban One, Inc.), Indenture (Radio One, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1a) pay dividends or make any other distributions on or in cash or otherwise on respect of its Capital Stock to the Company or any other Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company or any other Restricted Subsidiary;
(2b) make any loans or advances to to, or guarantee any Indebtedness or other obligations of, or make any Investment in, the Company or any other Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends , except for such encumbrances or liquidating distributions prior to dividends restrictions existing under or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibitreason of:
(1) any encumbrance or restriction pursuant to applicable law;
(a2) any this Indenture;
(3) the Senior Credit Facility or (b) any other agreement or instrument Facilities as in effect at on the Issue Date, and any amendments, refinancings, replacements or entered into restatements thereof; PROVIDED, HOWEVER, that any such amendment, refinancing, replacement or restatement is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on or prior to the Issue Date;
(24) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status customary non-assignment provisions of any Subsidiary contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as any customary restriction on the ability of a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration into dividend, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated distribute or otherwise combined with or into the Company or transfer any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument asset which secures purchase money Indebtedness of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor CompanySubsidiary;
(5) any instrument governing Acquired Indebtedness, which encumbrance or restriction: 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;
(i6) restrictions with respect to a Restricted Subsidiary of the Company imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Subsidiary; provided, however, that restricts in a such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary which are being sold;
(7) customary manner restrictions imposed on the subletting, assignment or transfer of copyrighted or patented materials;
(8) secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.08 and Section 4.15, which encumbrance or restriction is not applicable to any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or assets other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of than the property or assets subject to the Lien securing such mortgages, pledges, charges or other security agreementsIndebtedness; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;or
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses clause (1) to 3), (16) of this Section 3.4(b5) or this clause (17)8) above; provided, however, that the encumbrances and restrictions such refinancing agreement is not materially more restrictive with respect to such Restricted Subsidiary contained in any such agreement encumbrances or instrument are no less favorable in any material respect to the Holders taken as a whole restrictions than the encumbrances and restrictions those contained in the Initial Agreement agreement referred to in such clause (3), (5) or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (8) as determined by the Board of Directors in their reasonable good faith by the Company)judgment.
Appears in 1 contract
Sources: Indenture (Paragon Trade Brands Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (ai) any Credit Facility Facility, (ii) the Convertible Notes or (biii) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (43), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; or (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Qualified Securitization Facility, Floor Plan Facility Financing or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where where, in the case of clause (ii), either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1716) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (1615) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (1615) of this Section 3.4(b) or this clause (1716); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Sources: Indenture (TUTOR PERINI Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) (i) pay dividends or make any other distributions to the Company or any Restricted Subsidiary in cash or otherwise on its Capital Stock or (ii) pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary that is a direct or indirect parent of such Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (ai) any Credit Facility or (bii) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license (including, without limitation, licenses of intellectual property) or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; or (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) any encumbrance or restriction pursuant to customary provisions in leases, licenses, shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances any encumbrance or restrictions restriction arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) any encumbrance or restriction pursuant to other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions any encumbrance or restriction created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of (i) any lien permitted under Section 3.6;
3.6 or (16ii) any encumbrance or restriction pursuant to Restricted Investment permitted under Section 3.3 and any Floor Plan Facility customary for inventory and floor plan financing in the automobile industryPermitted Investment; or
(1716) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (1615) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (1615) of this Section 3.4(b) or this clause (1716); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note GuaranteesDocuments;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: :
(i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; ;
(ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; ;
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or or
(iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Financing Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Issue Date pursuant to the provisions of Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Permitted Funding Indebtedness, Permitted Securitization Facility, Floor Plan Facility Indebtedness or Receivables Facility Credit Enhancement Agreements that, in the good faith determination of the Company, are necessary or advisable to effect such Permitted Funding Indebtedness or Permitted Securitization Facility, Floor Plan Facility or Receivables FacilityIndebtedness;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred incurred subsequent to the Issue Date pursuant to Section 3.2 if (a) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained (i) in any Credit Facilities, together with the security documents associated therewith, or this Indenture as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where either ), (Ab) the Company determines in good faith at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (Bc) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1716) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (1) to (16) of this Section 3.4(b) above or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (1) to (16) of this Section 3.4(b) above or this clause (17)clause; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Sources: Indenture (loanDepot, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Issuer or any Restricted Subsidiary;
(2) make any loans or advances to the Company Issuer or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (ai) any Credit Facility or (bii) any other agreement or instrument instrument, in each case, in effect at or entered into on the Issue Date or prior to the Escrow Release Date (or otherwise required as of the Issue Date or the Escrow Release Date), and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein are not, in the good faith determination of the Board of Directors of the Issuer, materially more restrictive, taken as a whole, than those contained in the those agreements on the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirementorder, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or of the status of foregoing issued by any Subsidiary of such Restricted Subsidiary) as a Captive Insurance SubsidiaryGaming Authority;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Issuer or was merged, consolidated or otherwise combined with or into the Company Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company Issuer or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; or (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Issuer or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and FF&E Financings or Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practices;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the CompanyIssuer) and where where, in the case of clause (ii), either (A) the Company Issuer determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the CompanyIssuer’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrumentIndebtedness;
(1514) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1715) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, restates, replaces, restructures or refinances, an agreement or instrument referred to in clauses (1) to (1614) of this Section 3.4(b) or this clause (1615) (an “Initial Agreement”) or contained in any amendment, supplement supplement, extension, renewal, restatement, replacement, restructuring or other modification to an agreement referred to in clauses (1) to (1614) of this Section 3.4(b) or this clause (1715); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no not materially less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the CompanyIssuer).
Appears in 1 contract
Sources: Indenture (Churchill Downs Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; ;
(b) provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(bc) The provisions of Section 3.4(a4.08(a) shall hereof will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility (including any ABL Credit Facility) or (b) any other agreement or instrument in effect at or entered into on the Issue Date (or prior to otherwise required as of the Issue Date);
(2) any encumbrance or restriction pursuant to this Indenture, the NotesSecurity Documents, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance encumbrances or restriction restrictions pursuant to or arising or existing by reason of applicable law, law or any applicable rule, regulation or order order, or requirement, including required by any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryregulatory authority;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: :
(iA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; ;
(iiB) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; ;
(iiiC) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or or
(ivD) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(1110) any encumbrance or restriction pursuant to Hedging ObligationsObligations and Cash Management Services;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(1411) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 3.2 4.09 hereof if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in comparable financings (as determined in good faith by the Company) and where either (A) ), together with the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, security documentation associated therewith as in any material respect, the Company’s ability to make principal or interest payments effect on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrumentIssue Date;
(1512) any encumbrance or restriction existing by reason of any lien permitted under by Section 3.64.12 hereof;
(1613) restrictions created in connection with any encumbrance Qualified Securitization Financing or restriction pursuant to any Floor Plan Receivables Facility customary for inventory and floor plan financing that, in the automobile industry; orgood faith determination of the Company, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(1714) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, restates, replaces, restructures or refinances, an agreement or instrument referred to in clauses (1) to (1613) of this Section 3.4(b4.08(b) or this clause (1614) (an “Initial Agreement”) or contained in any amendment, supplement supplement, extension, renewal, restatement, replacement, restructuring or other modification to an agreement referred to in clauses (1) to (1613) of this Section 3.4(b4.08(b) or this clause (1714); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no materially less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
(d) For purposes of determining compliance with this Section 4.08, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions on Capital 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 Company or a Restricted Subsidiary of the Company of other Indebtedness Incurred by the Company or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (Urban One, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. 105-
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Note Guarantees, the Collateral Documents, any Intercreditor Agreement Documents and the Note GuaranteesIntercreditor Agreement;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: :
(i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; ;
(ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture and the Collateral Documents or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; ;
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or or
(iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this IndentureIndenture and the Collateral Documents, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries Non-Guarantors permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section Section 3.2 that impose restrictions solely on the Foreign Subsidiaries Non-Guarantors party thereto or their Subsidiaries;
(13) restrictions created in connection with any Qualified Securitization Facility, Floor Plan Facility Financing or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where where, in the case of clause (ii), either (Aa) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (Bb) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1716) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (1615) of this Section Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (1615) of this Section Section 3.4(b) or this clause (1716); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Sources: Indenture (Atento S.A.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) to loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (ai) any Credit Facility or (bii) any other agreement or instrument instrument, in each case, in effect at or entered into on the Issue Date (or prior to otherwise required as of the Issue Date);
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Guarantees the Exchange Notes Collateral Documents, and any Intercreditor Agreement and the Note GuaranteesGuarantees thereof;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirementorder, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or of the status of foregoing issued by any Subsidiary of such Restricted Subsidiary) as a Captive Insurance SubsidiaryGaming Authority;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized used to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; or (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and FF&E Financings or Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where where, in the case of clause (ii), either (A) the Company determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrumentIndebtedness;
(1514) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1715) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, restates, replaces, restructures or refinances, an agreement or instrument referred to in clauses (1) to (1614) of this Section 3.4(b) or this clause (1615) (an “Initial Agreement”) or contained in any amendment, supplement supplement, extension, renewal, restatement, replacement, restructuring or other modification to an agreement referred to in clauses (1) to (1614) of this Section 3.4(b) or this clause (1715); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Sources: Indenture (Affinity Gaming, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Issuer and the Company shall not, and the Company shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of the Issuer or any Restricted Subsidiary to:
: (1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations obligation owed to the Issuer, the Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock); (y2) make any loans or advances to the Issuer, the Company or any Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Issuer, the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Issuer, the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); provided further that or (3) transfer any of its property or assets to the issuance of such Preferred Stock and Issuer, the incurrence of such Indebtedness, including payments thereon, otherwise comply with this IndentureCompany or any Restricted Subsidiary.
(b) The provisions of paragraph (a) of this Section 3.4(a) 3.6 shall not prohibit:
: (1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4i) any encumbrance or restriction pursuant to an agreement in effect at or instrument entered into on the date of this Indenture, including, without limitation, this Indenture, the indenture governing the Existing Notes and the Revolving Credit Facility and any related documentation and Hedging Obligations; (ii) any encumbrance or restriction with respect to a Person Non-Guarantor Subsidiary pursuant to any agreement relating to Indebtedness Incurred by such Non-Guarantor Subsidiary under clause (11) of paragraph (b) of Section 3.3; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness of a Person, entered into Incurred by such Restricted Subsidiary on or before the date on which such Person Restricted Subsidiary was acquired by directly or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed indirectly by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired directly or indirectly by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such the transaction) and outstanding on such date; provided that, for the purposes of this clause (4)provided, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or that any such Subsidiary encumbrance or restriction shall be deemed acquired not extend to any assets or assumed by property of the Issuer, the Company or any other Restricted Subsidiary when other than the assets and property so acquired; (iv) any encumbrance or restriction with respect to the Issuer or a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this paragraph or this clause (iv) or contained in any amendment to an agreement referred to in clause (i), (ii) or (iii) of this paragraph or this clause (iv); provided, however, that the encumbrances and restrictions with respect to such Person becomes Restricted Subsidiary contained in any such agreement or amendment are, in the Successor good faith judgment of the Company;
, no more restrictive in any material respect than the encumbrances and restrictions with respect to the Issuer or such Restricted Subsidiary contained in such agreements referred to in clauses (5i), (ii) or (iii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable; (v) in the case of clause (3) of Section 3.6(a), any encumbrance or restriction: (ia) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreementcontract; (iib) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Issuer, the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivc) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer, the Company or any Restricted Subsidiary;
; (6vi) any encumbrance or restriction pursuant to Purchase Money Obligations (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of Section 3.6(a) on the subject property;
property so acquired; (7vii) any encumbrance 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 Company, are necessary to effect such Qualified Receivables Transaction; (viii) any restriction with respect to the Issuer or a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company Issuer or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
, subject to, in the case of the Issuer, compliance with the provisions of Section 4.1(a); (8) ix) any customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents agreements and other similar agreements entered into in the ordinary course of business; (x) net worth provisions or other customary provisions in leases or subleases and instruments;
other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business; (9xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order; (xii) customary restrictions contained in licenses or sublicenses related to, or required by any regulatory authority;
(10) any encumbrance or restriction on cash copyrights, patents, trademarks or other deposits or net worth imposed by customers under intellectual property and other agreements entered into in the ordinary course of business;
; and (11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15xiii) any encumbrance or restriction existing under, by reason of or with respect to Indebtedness of the Issuer, the Company or any lien permitted Restricted Subsidiary not prohibited to be incurred under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industrythis Indenture; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained are, in any such agreement or instrument are the good faith judgment of the Company, no less favorable more restrictive in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements agreements referred to which such refinancing or amendment, supplement or other modification relates in clause (as determined in good faith by the Companyi) of this Section 3.6(b).
Appears in 1 contract
Sources: Indenture (Quiksilver Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and Holdings shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (1a) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
, (2b) make any loans or advances to the Company or any Restricted Subsidiary; or
Subsidiary or (3c) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibitexcept:
(1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or entered into on or prior to the Issue Date, including the Senior Credit Agreement;
(2B) any encumbrance or restriction pursuant with respect to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such a Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred by such Restricted Subsidiary on or before prior to the date on which such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets Holdings (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionHoldings) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17C) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses Section 4.05(1)(A) or (1) to (16) of this Section 3.4(bB) or this clause (17C) or contained in any amendment to an agreement referred to in Section 4.05(1)(A) or (B) or this clause (C); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially less favorable, taken as a whole, to the Company (as determined by the Board of Directors in its reasonable and good faith judgment) than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;
(D) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(E) any encumbrance or restriction pursuant to an agreement or instrument are no less favorable relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction relates only to the property or assets so acquired and is not created in anticipation of such acquisition;
(F) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(G) restrictions on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into the ordinary course of business, including such restrictions imposed by customers, suppliers, landlords or insurance, surety or bonding companies;
(H) any encumbrance or restriction with respect to a Foreign Subsidiary entered into in the ordinary course of business or pursuant to the terms of Indebtedness that was Incurred by such Foreign Subsidiary in compliance with the terms of this Indenture;
(I) provisions contained in any material respect license, permit or other accreditation with a regulatory authority entered into the ordinary course of business;
(J) provisions in agreements or instruments which prohibits the payment or making of dividends or other distributions other than on a pro rata basis;
(K) customary provisions in organizational documents, joint venture agreements and other similar agreements (in each case relating solely to the Holders respective joint venture or similar entity or the equity interests therein) entered into (i) in the ordinary course of business or (ii) with the approval of the Board of Directors; and
(L) any encumbrance or restrictions existing under or by reason of any agreements governing other Indebtedness permitted to be incurred under Section 4.03 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein are not materially more restrictive, taken as a whole whole, than those permitted in (y) this Indenture, the encumbrances Securities and restrictions the Guarantees or (z) agreements governing Indebtedness outstanding on the Issue Date, in each case as determined by the Company in its reasonable and good faith judgment.
(2) with respect to clause (c) only,
(A) any encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder; and
(B) any encumbrance or restriction contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the Initial Agreement extent such encumbrance or Initial Agreements restriction restricts the transfer of the property subject to which such refinancing security agreements or amendment, supplement or other modification relates (as determined in good faith by the Company)mortgages.
Appears in 1 contract
Sources: Indenture (Murphy USA Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Issuer or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company Issuer or any Restricted Subsidiary;
(2) make any loans or advances to the Company Issuer or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Issuer or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company Issuer or any Restricted Subsidiary Subsidiary, or any prohibition on securing such loans or advances made to the Issuer or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.07(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date, 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 materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue Date (as determined in good faith by the Issuer);
(2) any encumbrance [Reserved];
(3) encumbrances or restriction pursuant to restrictions existing under or by reason of this Indenture, the Notes, the Senior Secured Notes, the Senior Secured Notes Collateral Indenture, the Senior Secured Facilities, the guarantees thereof, the Senior Secured Facilities Security Documents, any Intercreditor the Notes Escrow Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance SubsidiarySSN Escrow Agreement;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Company Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which (ii) such agreement or instrument is assumed by the Company Issuer or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each case, other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Issuer or was merged, consolidated or otherwise combined with or into the Company Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionSubsidiary) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, or any Subsidiary thereof or thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise refinancesextends, renews, refunds, refinances or replaces an agreement or instrument referred to in clauses (1) to ), (16) of this Section 3.4(b3), (4) or this clause (165) of this Section 4.07(b) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to ), (16) of this Section 3.4(b3), (4) or this clause (175) of this Section 4.07(b); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the CompanyIssuer);
(6) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Issuer or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements;
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(D) pursuant to the terms of any license, authorization, concession or permit;
(7) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(8) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchange;
(11) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(12) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(13) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.04 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than (i) the encumbrances and restrictions contained in the Senior Secured Facilities on the Completion Date, together with the security documents associated therewith, if any, as in effect on or immediately prior to the Completion Date or (ii) is customary in comparable financings (as determined in good faith by the Issuer) and where, in the case of clause (ii), the Issuer determines at the time of issuance of such Indebtedness that such encumbrances or restrictions (x) will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes as and when they become due or (y) such encumbrances and restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness;
(14) any encumbrance or restrictions arising in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing that, in the good faith determination of an Officer or the Board of Directors of the Issuer, are necessary or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06.
Appears in 1 contract
Sources: Indenture (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Note Guarantees and the Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement, including in each case with respect to intellectual property; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture and the Collateral Documents or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; or (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this IndentureIndenture and the Collateral Documents, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries any Non-Guarantor Subsidiary permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries Non-Guarantor Subsidiary party thereto or their its Subsidiaries;
(13) restrictions created in connection with any Qualified Securitization Facility, Floor Plan Facility Financing or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the ABL Credit Agreement, together with the security documents associated therewith as in effect on the Issue Date, (ii) the encumbrances and restrictions contained in the Note Documents, or (iii) the encumbrances and restrictions contained in comparable financings (as determined in good faith by the Company) and where where, in the case of clause (iii), either (Aa) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (Bb) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of the Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject of such agreement or the payment rights arising thereunder (and any accessions and additions thereto and any improvements, proceeds and products thereof) and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(17) any encumbrance or restriction with respect to a Restricted Subsidiary that was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any Floor Plan Facility customary for inventory such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and floor plan financing in the automobile industryproperty of such Subsidiary; or
(1718) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (1617) of this Section 3.4(b) or this clause (1618) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (1617) of this Section 3.4(b) or this clause (1718); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
; (2) make any loans or advances to the Company or any Restricted Subsidiary; or
or (3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that . The preceding provisions will not prohibit (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4i) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the Issue Date; (ii) any encumbrance or restriction with respect to a Person or Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness of Incurred by a Person, entered into Restricted Subsidiary on or before the date on which such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such the transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any encumbrance or restriction: restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 707(i) or (iii) or this clause (iii) or contained in any amendment to an agreement referred to in Section 707(i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or amendment are no less favorable in any material respect to the Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in Section 707(i) or (ii) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable; (iv) in the case of clause (3) of this Section 707, any encumbrance or restriction (a) imposed by customary provisions in joint venture agreements and similar agreements that restrict the transfer of the interests in the joint venture (b) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreementcontract; (iic) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Indenture or Agreement securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivd) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
; (6v) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, purchase money obligations for property acquired in each case, the ordinary course of business that impose encumbrances or restrictions of the nature described in clause (3) of this Section 707 on the subject property;
property so acquired; (7vi) any encumbrance Purchase Money Note or other Indebtedness or contractual requirements incurred with respect to a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; (vii) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
; and (8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Sources: First Supplemental Indenture (Hanover Compressor Co /)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary, or any requirement that such loans or advances made to the Issuer or any Restricted Subsidiary cannot be secured, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.07(a) shall hereof will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date, 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 materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue Date (as determined in good faith by the Issuer);
(2) any encumbrance [Reserved];
(3) encumbrances or restriction pursuant to restrictions existing under or by reason of this Indenture, the Notes, the Note Guarantees, the Senior Notes, the Senior Notes Collateral DocumentsIndentures, the Holdco Notes, the Holdco Notes Guarantee, the Holdco Notes Indenture, the Existing Senior Secured Notes and the guarantees thereof, the New Credit Facility and the guarantees thereof, the Intercreditor Agreement, any Additional Intercreditor Agreement Agreement, and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance SubsidiaryNotes Security Documents;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which (ii) such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each case, other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionSubsidiary) and outstanding on such date; provided that, for the purposes of this clause (4Section 4.07(b)(4), if another Person is the Successor Company, or any Subsidiary thereof or thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise refinancesextends, renews, refunds, refinances or replaces an agreement or instrument referred to in clauses (1Section 4.07(b)(1), Section 4.07(b)(3) to (16) of this or Section 3.4(b4.07(b)(4) or this clause (16Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1Section 4.07(b)(1), Section 4.07(b)(3) to (16) of this or Section 3.4(b4.07(b)(4) or this clause (17Section 4.07(b)(5); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Issuer);
(6) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements;
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary; or
(D) pursuant to the terms of any license, authorization, concession or permit;
(7) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(8) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchange;
(11) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(12) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(13) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.04 hereof if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than (i) the encumbrances and restrictions contained in the New Credit Facility on the Issue Date, together with the security documents associated therewith, if any, and the Intercreditor Agreement, as in effect on or immediately prior to the Issue Date or (ii) is customary in comparable financings (as determined in good faith by the Issuer) and where, in the case of clause (ii), the Issuer determines at the time of issuance of such Indebtedness that such encumbrances or restrictions (x) will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes as and when they become due or (y) such encumbrances and restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness;
(14) any encumbrance or restrictions arising in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing that, in the good faith determination of an Officer or the Board of Directors of the Company), are necessary or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06 hereof.
Appears in 1 contract
Sources: Indenture (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company Holdings shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Holdings or any Restricted Subsidiary;
(2) make any loans or advances to the Company Holdings or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Holdings or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Holdings or any Restricted Subsidiary to other Indebtedness Incurred by the Company Holdings or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility Facility, the Existing Convertible Notes, including any Guarantee thereof, or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note GuaranteesDocuments;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company Holdings or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company Holdings or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Holdings or was merged, consolidated or otherwise combined with or into the Company Holdings or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Holdings or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company Holdings or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company Holdings or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company Holdings or such Restricted Subsidiary that are 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 Holdings or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Holdings or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company Holdings or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Qualified Securitization Facility, Floor Plan Facility Financing or Receivables Facility that, in the good faith determination of the CompanyHoldings, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the First Lien Credit Agreement, together with the security documents associated therewith, or this Indenture as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the CompanyHoldings) and where where, in the case of clause (ii), either (A) the Company Holdings determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1716) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to through (1615) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to through (1615) of this Section 3.4(b) or this clause (1716); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the CompanyHoldings).
Appears in 1 contract
Sources: Indenture (Wayfair Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and or the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Qualified Securitization Facility, Floor Plan Facility Financing or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith, or this Indenture as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where where, in the case of clause (ii), either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1716) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (1) to (16) of this Section 3.4(b) above or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (1) to (16) of this Section 3.4(b) above or this clause (1716); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall and any Permitted Affiliate Parent will not, and shall will not permit any Restricted Subsidiary (other than the Loan Parties) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Loan Parties) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary;
(2) make any loans or advances to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (y) the subordination of (including but 95007615_1 not limited to, the application of any standstill requirements to) loans or advances made to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.08(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or effect, entered into or substantially agreed on the 2021 Amendment Effective Date, including, without limitation, this Agreement, the other Loan Documents, the Collateral Documents and any related documentation (including the security documents securing the Indebtedness thereunder and the guarantees thereof), in each case, as in effect, or prior to substantially agreed, on the Issue 2021 Amendment Effective Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted SubsidiarySubsidiary or designated a Permitted Affiliate Parent, an Affiliate Subsidiary or was designated as a Restricted Subsidiary (or on became a Restricted Subsidiary as a result thereof), or which such agreement or instrument is assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary or was merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided thatthat any such encumbrance or restriction shall not extend to any assets or property of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary other than the assets and property so acquired; provided, further, that for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(53) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3) or contained in any amendment, supplement, restatement or other modification to an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3); provided that the encumbrances and restrictions, taken as a whole, with respect to the Company, such Permitted Affiliate Parent or such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Finance Parties than the encumbrances and restrictions contained in such agreements referred to in Section 4.08(b)(1) or Section 4.08(b)(2) (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(4) in the case of Section 4.08(a)(3), any encumbrance or restriction: :
(iA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreement; contract;
(iiB) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Indenture or Agreement securing Indebtedness of the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; ;
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; or 95007615_1
(D) contained in operating leases for real property and restricting only the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(5) any encumbrance or restriction pursuant to (A) Purchase Money Obligations for property acquired in the ordinary course of business or (B) Capitalized Lease Obligations permitted under this Agreement, in each case, that either (i) impose encumbrances or restrictions of the nature described in Section 4.08(a)(3) on the property so acquired or (ii) are customary in connection with Purchase Money Obligations, Capitalized Lease Obligations and mortgage financings for property acquired in the ordinary course of business (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(6) any encumbrance or restriction pursuant to arising in connection with, or any contractual requirement incurred with respect to, any Purchase Money Obligations and Capitalized Lease Obligations permitted under this IndentureNote, other Indebtedness or a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in each casethe good faith determination of the Board of Directors or senior management of the Company or a Permitted Affiliate Parent, that impose encumbrances or restrictions on the subject propertyare necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction (A) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement (or option to enter into such agreement) entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositiondisposition or (B) arising by reason of contracts for the sale of assets, including customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale and disposition of all or substantially all assets of such Subsidiary or conditions imposed by governmental authorities or otherwise resulting from dispositions required by governmental authorities;
(8) (A) customary provisions in leases, licenses, shareholder asset sale agreements, joint venture agreementsagreements and other agreements and instruments entered into by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in the ordinary course of business or (B) in the case of a joint venture or a Subsidiary that is not a Wholly Owned Subsidiary, encumbrances, restrictions and conditions imposed by its organizational documents and or any related shareholders, joint venture or other similar agreements and instruments(including restrictions on the payment of dividends or other distributions);
(9) encumbrances or restrictions arising or existing by reason of applicable law Law or any applicable rule, regulation or regulation, governmental license, order, concession, franchise, or permit or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging ObligationsCurrency Agreements, Commodity Agreements or Interest Rate Agreements;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue 2021 Amendment Effective Date pursuant to Section 3.2 4.09 if (A) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders Finance Parties than the encumbrances and restrictions contained in this Agreement, the other Loan Documents, and any related documentation, in each case, as in effect on the 2021 Amendment Effective Date (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent) or (B) such encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Finance Parties than is customary in comparable financings (as determined conclusively in good faith by the CompanyBoard of Directors or senior management of the Company or a Permitted Affiliate Parent) and where and, in each case, either (Ai) the Company determines at the time of entry into such agreement or instrument a Permitted Affiliate Parent reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the Company’s Borrowers’ ability to make principal or interest payments on 95007615_1 the Notes Loans as and when they come due or (Bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance if a default occurs in respect of a default payment or financial covenant relating to such agreement or instrumentIndebtedness;
(1513) any encumbrance or restriction existing arising by reason of any lien permitted under Section 3.6;customary non-assignment provisions in agreements; and
(1614) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Intercreditor Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Sources: Additional Facility Joinder Agreement (Liberty Latin America Ltd.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(y2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such an encumbrance transfers shall not include any type of transfer described in clause (1) or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture(2) above).
(b) The preceding provisions of Section 3.4(a) shall will not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(1) any encumbrance contractual encumbrances or restriction restrictions pursuant to (a) any Credit Facility the Existing Notes and related documentation and other agreements or (b) any other agreement or instrument instruments in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or other instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is a party entered into in not applicable to any Person, or the ordinary course properties or assets of business; provided that such agreement prohibits any Person, other than the encumbrance of solely Person and its Subsidiaries, or the property or assets of the Company Person and its Subsidiaries, so acquired (including after-acquired property);
(4) any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clauses (1), (2) or (3) of this Section 4.07(b) or this clause (4); provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive than the encumbrances and restrictions contained the agreements referred to in clauses (1), (2) or (3) of this Section 4.07(b) on the Issue Date or the date such Restricted Subsidiary that are 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 became a Restricted Subsidiary or was merged or amalgamated into a Restricted Subsidiary, whichever is applicable;
(5) in the case of clause (3) of Section 4.07(a), Liens permitted to be Incurred under Section 4.11 that limit the right of the debtor to dispose of the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiarysecuring such Indebtedness;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of Section 4.07(a) on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the direct or indirect sale or disposition to a Person of all or substantially all a portion of the Capital Stock or assets of such Subsidiary;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) any customary provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(10) any customary provisions in leases, subleases or licenses and other agreements entered into by the Company or any Restricted Subsidiary (or in the property or assets that are subject to such restriction) pending the closing ordinary course of such sale or dispositionbusiness;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(911) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;; and
(12) (A) other Indebtedness, Disqualified Stock Indebtedness Incurred or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to by a Subsidiary Guarantor in accordance with Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility4.08, Floor Plan Facility or Receivables Facility that, in the good faith determination judgment of the Board of Directors of the Company, are necessary not more restrictive, taken as a whole, than those restrictions applicable to the Company in this Indenture on the Issue Date (which results in encumbrances or advisable restrictions at a Restricted Subsidiary level comparable to effect such Securitization Facilitythose applicable to the Company) or (B) other Indebtedness Incurred or Preferred Stock issued by a Non-Guarantor Restricted Subsidiary, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, in each case permitted to be Incurred subsequent to the Issue Date pursuant under Section 4.08; provided that with respect to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings clause (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that B), such encumbrances or restrictions will not adversely affect, in any material respect, materially affect the Company’s ability to make anticipated principal or and interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by judgment of the Board of Directors of the Company).
Appears in 1 contract
Sources: Fifth Supplemental Indenture (Thompson Creek Metals CO Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends dividends, in cash or otherwise, or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness Debt or other obligations obligation owed to the Company or any other Restricted SubsidiarySubsidiary of the Company;
(2) make any loans or advances to the Company or any other Restricted SubsidiarySubsidiary of the Company; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any other Restricted Subsidiary to other Indebtedness Incurred by of the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this IndentureCompany.
(b) The provisions of Section 3.4(a) foregoing limitations shall not prohibitapply to:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or entered into on or prior to the Issue Date, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are no more restrictive than those contained in such agreements as in effect on the Issue Date, as determined in good faith by the senior management or Board of Directors of the Company;
(2) any encumbrance or restriction existing under or by reason of the Credit Facilities, or Debt Incurred pursuant to this Indenture, Section 4.08(b)(2) or (15); provided that (x) either (i) the Notes, encumbrance or restriction applies only in the event of and during the continuance of a payment default or a default with respect to a financial covenant contained in such Debt or agreement or (ii) the Company determines at the time any such Debt is Incurred (and at the time of any modification of the terms of any such encumbrance or restriction) that any such encumbrance or restriction shall not materially affect the Company’s ability to make principal or interest payments on the Notes Collateral Documents, and any Intercreditor Agreement other Debt that is an obligation of the Company and (y) the Note Guaranteesencumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings or agreements (as determined by senior management or the Board of Directors of the Company in good faith);
(3) any encumbrance or restriction pursuant with respect to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such a Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction the Company pursuant to an agreement or instrument of a Person or relating to any Capital Debt Incurred or Preferred Stock or Indebtedness of a Person, entered into issued by such Restricted Subsidiary on or before prior to the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as Subsidiary became a Restricted Subsidiary or on which such agreement or instrument is assumed was acquired by the Company or any other Restricted Subsidiary in connection with an acquisition of assets (the Company and outstanding on such date, other than Capital Debt Incurred or Preferred Stock or Indebtedness Incurred issued as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Company or was merged, consolidated any other Restricted Subsidiary of the Company;
(4) any encumbrance or otherwise combined restriction with or into respect to a Restricted Subsidiary of the Company pursuant to an agreement evidencing Debt Incurred or Preferred Stock issued without violation of this Indenture or effecting a refinancing of Debt Incurred or Preferred Stock issued pursuant to an agreement referred to in Section 4.12(b)(1), (2) or (3) or this Section 4.12(b)(4) contained in any amendment to an agreement referred to in Section 4.12(b)(1), (2) or (3) or this Section 4.12(b)(4); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, refinancing agreement or entered into amendment, taken as a whole, are not materially less favorable to the Holders, as determined in contemplation good faith by the senior management or Board of or in connection with such transaction) and outstanding on such date; provided that, for Directors of the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of than encumbrances and restrictions with respect to such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes contained in agreements in effect at the Successor CompanyIssue Date;
(5) in the case of Section 4.12(a)(3), any encumbrance or restriction: :
(i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contract property or agreement, asset or the assignment or transfer of any such lease, license or other contract or agreement; contract;
(ii) contained in mortgagesby virtue of any transfer of, pledgesagreement to transfer, charges option or other security agreements permitted under this Indenture right with respect to, or securing Indebtedness of the Company or a Restricted Subsidiary (including Lien on, any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which of the Company or any of its Restricted Subsidiaries not otherwise prohibited by this Indenture;
(iii) that is included in a party entered into licensing agreement to the extent such restrictions limit the transfer of the property subject to such licensing agreement;
(iv) arising or agreed to in the ordinary course of business; provided business and that such agreement prohibits does not, individually or in the encumbrance aggregate, detract from the value of solely the property or assets of the Company or such any of its Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth Subsidiaries in any reciprocal easement agreements of manner material to the Company or any such Restricted SubsidiarySubsidiary as determined in good faith by senior management or the Board of Directors of the Company; and
(v) contained in security agreements, mortgages or similar documents securing Debt of a Restricted Subsidiary of the Company incurred in accordance with this Indenture to the extent those encumbrances or restrictions restrict the transfer of the property subject to such security agreements;
(6) any encumbrance restriction with respect to a Restricted Subsidiary of the Company or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances any of its properties or restrictions on the subject property;
(7) any encumbrance or restriction assets imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any such Restricted Subsidiary (whether by stock sale, asset sale, merger, consolidation or the property or assets that are subject to such restrictionotherwise) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(97) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rulelaw, regulation or order, ;
(8) any encumbrance or required by any regulatory authorityrestriction under Capitalized Lease Obligations and purchase money obligations for property leased or acquired in the ordinary course of business that impose encumbrances or restrictions of the nature described in Section 4.12(a)(3) on the property so leased or acquired;
(9) customary provisions with respect to the distribution of assets or property in joint venture agreements; and
(10) any encumbrance or restriction restrictions on cash or other deposits or net worth imposed by customers under agreements contracts entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Sources: Indenture (JBS USA Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted SubsidiarySubsidiary of the Company (provided, however, that (i) the priority that any series of Preferred Stock of a Restricted Subsidiary of the Company has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (ii) the subordination of Indebtedness owed to the Company or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2) make any loans or advances to the Company or a Restricted Subsidiary of the Company (it being understood that the subordination of loans or advances made to the Company or any Restricted SubsidiarySubsidiary to other Indebtedness incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any a Restricted Subsidiary of the Company. However, the preceding restrictions of this Section 3.4 will not apply to other Indebtedness Incurred encumbrances or restrictions existing under or by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibitreason of:
(1) any encumbrance or restriction pursuant to (a) in any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue DateDate (including the Credit Agreements);
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement Securities and the Note Subsidiary Guarantees;
(3) any encumbrance or restriction pursuant with respect to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such a Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction the Company pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into incurred by such Restricted Subsidiary on or before prior to the date on which such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any became a Restricted Subsidiary in connection with an acquisition of assets the Company (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionCompany) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(174) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing Refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses clause (1), (2) to or (163) of this Section 3.4(b) paragraph or this clause (174) or contained in any amendment to an agreement referred to in clause (1), (2) or (3) of this paragraph or this clause (4); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or instrument amendment are no less favorable in any material respect to the Holders taken as a whole Securityholders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in the Initial Agreement or Initial Agreements to which such refinancing or amendmentagreements, supplement or other modification relates (as determined in good faith by the Company;
(a) customary non-assignment provisions in any contract, license, lease or sale or exchange agreement and (b) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers or lessors under contracts or leases, in the case of each of clauses (a) and (b), entered into in the ordinary course of business;
(6) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary of the Company to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(7) any restriction with respect to a Restricted Subsidiary of the Company imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(8) any encumbrance or restriction in any agreement or instrument in the Existing Receivables Financing and in connection with a Qualified Receivables Transaction;
(9) Refinancing Indebtedness; provided that the encumbrances or restrictions contained in the agreements governing such Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined in good faith by the Company;
(10) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 3.6 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary of the Company that is not a Domestic Subsidiary;
(13) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(14) agreements governing Hedging Contracts, Interest Rate Agreements and Currency Agreements incurred in the ordinary course of business;
(15) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary of the Company; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary of the Company and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary of the Company other than the assets and property of such Unrestricted Subsidiary;
(16) provisions limiting the distribution or dividend of assets or any portion of Capital Stock of SpinCo in connection with a Qualified Spin Transaction; and
(17) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (1) through (16) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Company.
Appears in 1 contract
Sources: Indenture (CONSOL Energy Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Re- stricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Issuer or any Restricted Subsidiary;
(2) make any loans or advances to the Company Issuer or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.Subsidi- ary;
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement agree- ment or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any the Intercreditor Agreement Agreements and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating re- lating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company Issuer or any Restricted Re- stricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized uti- lized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Issuer or was merged, consolidated or otherwise combined with or into the Company Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4)clause, if another anoth- er Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(54) any encumbrance or restriction: :
(i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment assign- ment or transfer of any lease, license or other contract or agreement; ;
(ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture and the Collateral Documents or securing Indebtedness of the Company Issuer or a Restricted Re- stricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests inter- ests set forth in any reciprocal easement agreements of the Company Issuer or any Restricted Subsidiary;
(65) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this IndentureIndenture and the Collateral Documents, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(76) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct di- rect or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company Is- ▇▇▇▇ or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) 7) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instruments;
(9) 8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable appli- cable rule, regulation or order, or required by any regulatory authority;
(109) any encumbrance or restriction on cash or other deposits or net worth imposed by customers cus- tomers under agreements entered into in the ordinary course of business;
(1110) any encumbrance or restriction pursuant to Hedging Obligations;
(1211) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries Non Guarantors permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries Non-Guarantors party thereto or their Subsidiaries;
(1312) restrictions created in connection with any Qualified Securitization Facility, Floor Plan Facility or Receivables Facility Financing that, in the good faith determination of the CompanyIssuer, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(1413) any encumbrance or restriction arising pursuant to an agreement or instrument relating which, if it relates to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Issue Date pursuant pursu- ant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole (i) are not materially less favorable to the Holders than the encumbrances and restrictions con- tained in comparable financings the Credit Agreements and the Junior Priority Notes, together with the security documents associ- ated therewith as in effect on the Issue Date or (as determined in good faith by the Companyii) and where either (A) the Company Issuer determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material mate- rial respect, the CompanyIssuer’s ability to make principal or interest payments on the Notes or (B) such encumbrance encum- brance or restriction applies only during the continuance of a default relating to such agreement or instrumentinstru- ment;
(1514) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;Section
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1715) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing refi- nancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred re- ferred to in clauses (1) to (1614) of this Section 3.4(b) or this clause (1615) (an “Initial Agreement”) or contained con- tained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).to
Appears in 1 contract
Sources: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.05
(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (including the ABL Facility), (b) the Intercreditor Agreement and any Additional Intercreditor Agreement and (c) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to (a) this Indenture, the Notes or the Notes Guarantees and (b) the Senior Secured Indenture, the Senior Secured Notes, the Notes Collateral Documents, any Intercreditor Agreement and Security Documents (as defined in the Note GuaranteesSenior Secured Indenture) or related Guarantees thereof;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4)clause, if another Person is the Successor CompanyCompany (as defined below), any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance encumbrance, restriction or restriction: condition:
(ia) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; ;
(iib) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; ;
(iiic) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its the Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or or
(ivd) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, licensing requirement or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Qualified Securitization Facility, Floor Plan Facility Financing or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(1413) any encumbrance or restriction arising pursuant to an agreement or instrument (a) relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 3.2 4.06, if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders (taken as a whole) than (i) the encumbrances and restrictions contained in (A) the ABL Documents, together with the security documents associated therewith, and (B) the Intercreditor Agreement, in each case, as in effect on the Transfer Completion Date or (ii) as is customary in comparable financings (as determined in good faith by the Company) and where where, in the case of this sub-clause (ii), either (Ax) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (By) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument, or (b) constituting an Additional Intercreditor Agreement;
(1514) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry4.09; or
(1715) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (1614) of this Section 3.4(b) 4.05 or this clause (1615) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (1614) of this Section 3.4(b) 4.05 or this clause (1715); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders (taken as a whole whole) than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall Each of Superior Energy and Issuer will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to Superior Energy, Issuer or any Restricted Subsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company Superior Energy, Issuer or any of their Restricted Subsidiary;
Subsidiaries (2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(y2) make any loans or advances to Superior Energy, Issuer or any of their Restricted Subsidiaries (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Superior Energy, Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company Superior Energy, Issuer or any of their Restricted Subsidiary Subsidiaries shall not be deemed a restriction on the ability to constitute make loans or advances); or
(3) sell, lease or transfer any of its property or assets to Superior Energy, Issuer or any of their Restricted Subsidiaries (it being understood that such an encumbrance transfers shall not include any type of transfer described in clause (1) or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture(2) above).
(b) The preceding provisions of Section 3.4(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or entered into on or prior to the Issue Date, including any such Debt Facility and the Notes, the Exchange Notes and this Indenture, as well as the Third Amended and Restated Credit Agreement referenced in clause (ii) of the definition of “Credit Agreement”;
(2) any encumbrance or restriction pursuant with respect to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such a Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred by such Restricted Subsidiary on or before prior to the date on which such Person Restricted Subsidiary was acquired by Superior Energy or mergedIssuer, consolidated or otherwise combined with or into as the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets case may be (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or was mergedIssuer), consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(173) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses clause (1) to or (162) of this Section 3.4(b4.08(b) or this clause (173) or contained in any amendment to an agreement referred to in clause (1) or (2) of this Section 4.08(b) or this clause (3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or instrument amendment are no less favorable in any material respect to the Holders taken as a whole more restrictive than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;
(4) any such encumbrance or restriction consisting of customary non-assignment provisions in leases governing leasehold interests to the Initial extent such provisions restrict the transfer of the lease or the property leased thereunder;
(5) in the case of clause (3) of Section 4.08(a) hereof, restrictions contained in security agreements or mortgages securing Indebtedness of Superior Energy, Issuer or a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements or mortgages;
(6) provisions limiting the disposition or distribution of assets or property in joint venture agreements, limited liability agreements, joint operating agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business, which limitation is applicable only to the assets that are the subject of such agreements;
(7) restrictions imposed by customers on cash or other amounts deposited by them pursuant to contracts entered into in the ordinary course of business;
(8) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a) hereof;
(9) restrictions on the transfer of property or assets required by any regulatory authority having jurisdiction over Superior Energy, Issuer or such Restricted Subsidiary;
(10) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of Superior Energy, Issuer and their Restricted Subsidiaries to realize the value of, property or assets of Issuer or any Restricted Subsidiary in any manner material to Superior Energy, Issuer or any Restricted Subsidiary;
(11) encumbrances or restrictions contained in, or in respect of, Hedging Obligations permitted under this Indenture from time to time;
(12) encumbrances or restrictions contained in agreements related to Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.09 and any corresponding 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; and
(13) other Indebtedness Incurred or Preferred Stock issued by a Guarantor in accordance with Section 4.09 that, in the good faith judgment of Senior Management, are not more restrictive, taken as a whole, than those applicable to Issuer or Superior Energy in this Indenture or the Credit Agreement on the Issue Date (which results in encumbrances or Initial Agreements restrictions at a Restricted Subsidiary level comparable to which those applicable to Issuer) or (y) other Indebtedness Incurred or Preferred Stock issued by a Non-Guarantor Subsidiary, in each case permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09; provided that with respect to clause (y), such encumbrances or restrictions will not materially affect Issuer’s ability to make anticipated principal and interest payments on the Notes (in the good faith judgment of Senior Management).
(c) Superior Energy will not create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on its ability to (i) make capital contributions or other Investments in Issuer or any Restricted Subsidiary or pay any Indebtedness owed to Issuer or any Restricted Subsidiary, (ii) make any loans or advances to Issuer or any Restricted Subsidiary or (iii) transfer any of its property or assets to Issuer or any Restricted Subsidiary, except:
(1) any encumbrance or restriction pursuant to any Debt Facilities and any other agreement in effect at or entered into on the Issue Date, as well as the Third Amended and Restated Credit Agreement referenced in clause (ii) of the definition of “Credit Agreement”; and
(2) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the immediately preceding clause (1) of this Section 4.08(c) or this clause (2) or contained in any amendment to an agreement referred to in the immediately preceding clause (1) of this Section 4.08(c) of this clause (2); provided, however, that the encumbrances and restrictions with respect to Superior Energy contained in any such refinancing agreement or amendment, supplement or other modification relates (as determined amendment are no more restrictive in good faith by any material respect than the Company)encumbrances and restrictions with respect to Superior Energy contained in such predecessor agreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.08(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility (including the Senior Finance Documents) or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date, including the indentures governing the Existing Secured Notes and the Existing Unsecured Notes and the agreement governing the Term Loans;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(173) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b4.08(b)(1), 4.08(b)(2) or this clause (164.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b4.08(b)(1), 4.08(b)(2) or this clause (174.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall and any Permitted Affiliate Parent will not, and shall will not permit any Restricted Subsidiary (other than the Loan Parties) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Loan Parties) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary;
(2) make any loans or advances to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (y) the subordination of (including but 216 95007600_2 not limited to, the application of any standstill requirements to) loans or advances made to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.08(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or effect, entered into or substantially agreed on the 2021 Amendment Effective Date, including, without limitation, this Agreement, the other Loan Documents, the Covenant Agreement, the Proceeds Loan Agreement, the Proceeds Loan Collateral Documents and any related documentation (including the security documents securing the Indebtedness thereunder and the guarantees thereof), in each case, as in effect, or prior to substantially agreed, on the Issue 2021 Amendment Effective Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted SubsidiarySubsidiary or designated a Permitted Affiliate Parent, an Affiliate Subsidiary or was designated as a Restricted Subsidiary (or on became a Restricted Subsidiary as a result thereof), or which such agreement or instrument is assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary or was merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided thatthat any such encumbrance or restriction shall not extend to any assets or property of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary other than the assets and property so acquired; provided, further, that for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(53) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3) or contained in any amendment, supplement, restatement or other modification to an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3); provided that the encumbrances and restrictions, taken as a whole, with respect to the Company, such Permitted Affiliate Parent or such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Finance Parties than the encumbrances and restrictions contained in such agreements referred to in Section 4.08(b)(1) or Section 4.08(b)(2) (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(4) in the case of Section 4.08(a)(3), any encumbrance or restriction: :
(iA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreement; contract;
(iiB) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Indenture or Agreement securing Indebtedness of the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; 217 95007600_2
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; or
(D) contained in operating leases for real property and restricting only the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(5) any encumbrance or restriction pursuant to (A) Purchase Money Obligations for property acquired in the ordinary course of business or (B) Capitalized Lease Obligations permitted under this Agreement, in each case, that either (i) impose encumbrances or restrictions of the nature described in Section 4.08(a)(3) on the property so acquired or (ii) are customary in connection with Purchase Money Obligations, Capitalized Lease Obligations and mortgage financings for property acquired in the ordinary course of business (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(6) any encumbrance or restriction pursuant to arising in connection with, or any contractual requirement incurred with respect to, any Purchase Money Obligations and Capitalized Lease Obligations permitted under this IndentureNote, other Indebtedness or a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in each casethe good faith determination of the Board of Directors or senior management of the Company or a Permitted Affiliate Parent, that impose encumbrances or restrictions on the subject propertyare necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction (A) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement (or option to enter into such agreement) entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositiondisposition or (B) arising by reason of contracts for the sale of assets, including customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale and disposition of all or substantially all assets of such Subsidiary or conditions imposed by governmental authorities or otherwise resulting from dispositions required by governmental authorities;
(8) (A) customary provisions in leases, licenses, shareholder asset sale agreements, joint venture agreementsagreements and other agreements and instruments entered into by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in the ordinary course of business or (B) in the case of a joint venture or a Subsidiary that is not a Wholly Owned Subsidiary, encumbrances, restrictions and conditions imposed by its organizational documents and or any related shareholders, joint venture or other similar agreements and instruments(including restrictions on the payment of dividends or other distributions);
(9) encumbrances or restrictions arising or existing by reason of applicable law Law or any applicable rule, regulation or regulation, governmental license, order, concession, franchise, or permit or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging ObligationsCurrency Agreements, Commodity Agreements or Interest Rate Agreements;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue 2021 Amendment Effective Date pursuant to Section 3.2 4.09 if (A) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders Finance Parties than the encumbrances and restrictions contained in this Agreement, the other Loan Documents, and any related documentation, in each case, as in effect on the 2021 Amendment Effective Date (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent) or (B) such encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Finance Parties than is customary in comparable financings (as determined conclusively in good faith by the CompanyBoard of 218 95007600_2 Directors or senior management of the Company or a Permitted Affiliate Parent) and where and, in each case, either (Ai) the Company determines at the time of entry into such agreement or instrument a Permitted Affiliate Parent reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the Company’s Borrowers’ ability to make principal or interest payments on the Notes Loans as and when they come due or (Bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance if a default occurs in respect of a default payment or financial covenant relating to such agreement or instrumentIndebtedness;
(1513) any encumbrance or restriction existing arising by reason of any lien permitted under Section 3.6;customary non-assignment provisions in agreements; and
(1614) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Intercreditor Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary of the Company to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary of the Company to:
(1i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or a Restricted Subsidiary of the Company or pay any Indebtedness or other obligations owed to the Company or any Restricted SubsidiaryCompany;
(2ii) make any loans or advances to the Company or any Restricted SubsidiaryCompany; or
(3iii) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this IndentureCompany.
(b) The provisions of restrictions in Section 3.4(a3.6(a) shall not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4i) any encumbrance or restriction pursuant to an agreement in effect at or instrument entered into on the Issue Date, including the Credit Agreement and the indenture for the First Lien Notes;
(ii) any encumbrance or restriction contained in the terms of any Credit Agreement if (x) either (i) the encumbrance or restriction applies only in the event of and during the continuance of a Person payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement or (ii) the Company determines at the time any such Indebtedness is Incurred (and at the time of any modification of the terms of any such encumbrance or restriction) that any such encumbrance or restriction shall not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) the encumbrance or restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable financings or agreements (as determined by the Company in good faith);
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary of the Company pursuant to an agreement relating to any Capital Stock or Indebtedness of a Person, entered into Incurred by such Restricted Subsidiary on or before prior to the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as Subsidiary became a Restricted Subsidiary or on which such agreement or instrument is assumed was acquired by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionCompany) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing Refinancing (in whole or in part) of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses clause (1i), (ii) to or (16iii) of this Section 3.4(b3.6(b) or this clause (17iv) or contained in any amendment to an agreement referred to in clause (i), (ii) or (iii) of this Section 3.6(b) or this clause (iv); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or instrument amendment, taken as a whole, are no less favorable in any material respect to the Holders taken as a whole Noteholders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;
(v) any encumbrance or restriction with respect to a Restricted Subsidiary of the Initial Agreement Company imposed pursuant to an agreement entered into for the sale or Initial Agreements to which disposition of all or substantially all the Capital Stock or any assets of such refinancing Restricted Subsidiary pending the closing of such sale or amendmentdisposition;
(vi) any encumbrance or restriction existing under applicable law, supplement rule, regulation or order;
(vii) restrictions on cash or other modification relates deposits or net worth requirements imposed by customers under contracts entered into in the ordinary course of business;
(as determined viii) protective Liens filed in good faith connection with Sale/Leaseback Transactions permitted under this Indenture;
(ix) customary restrictions on the assignment or transfer of any property that is subject to a license or similar contract; and
(x) any encumbrance or restriction existing under Non-Recourse Securitization Entity Indebtedness or other contractual requirements of a Securitization Entity in connection with a Qualified Securitization Transaction; provided, however, that such restrictions apply only to such Securitization Entity;
(c) The restrictions in Section 3.6(a)(iii) shall not prohibit encumbrances or restrictions existing under or by reason of:
(A) any encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the Company)extent such provisions restrict the transfer or assignment of the lease or the property leased thereunder;
(B) any encumbrance or restriction contained in security agreements or other documentation governing secured Indebtedness of a Restricted Subsidiary of the Company to the extent such encumbrance or restriction restricts the transfer of the property securing such Indebtedness; and
(C) customary provisions restricting the disposition or distribution of assets or property to each holder of Capital Stock of a joint venture contained in any constitutional documents of such joint venture or any joint venture agreement, shareholders agreement or similar agreement which restriction is limited to the assets or property of such joint venture.
Appears in 1 contract
Sources: Indenture (Reddy Ice Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall Issuer will not, and shall will not permit any Restricted Subsidiary that is not a Guarantor to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
that is not a Guarantor (1directly or indirectly) to (A) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company Issuer or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided Subsidiaries (it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and shall not be deemed a restriction on the ability to make distributions on Capital Stock), (yB) make any loans or advances to the Issuer (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restriction; provided further that advances) or (C) sell, lease or transfer any of its property or assets to the issuance Issuer or any of such Preferred Stock and the incurrence of such Indebtednessits Restricted Subsidiaries, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibitexcept:
(1) any encumbrance or restriction pursuant with respect to clauses (aa)(A), (a)(B) any Credit Facility or and (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;a)(C):
(2A) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4x) any encumbrance or restriction pursuant to an agreement in effect at or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on the Issue Date, including pursuant to the ABL Credit Facility and the related documentation and related Hedging Obligations and Cash Management Obligations, the Term Loan Credit Facility and the related documentation, the Existing Notes Indenture and the related documentation and (y) this Indenture, the Notes, the Guarantees and the Notes Security Documents;
(B) any encumbrance or before restriction with respect to a Restricted Subsidiary or the property or assets acquired by the Issuer or any of its Restricted Subsidiaries existing on or prior to the date on which such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets Issuer (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionIssuer) and outstanding on such datedate and any amendments, modification, restatements, renewals, extensions, increases, supplements, refunding, replacements or refinancing thereof; provided that, for that the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or encumbrances and restrictions in any such Subsidiary shall be deemed acquired amendments, modifications, restatements, renewals, extensions, increases, supplements, refunding, replacements or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party refinancing are entered into in the ordinary course of business; provided that business or not materially more restrictive, taken as a whole, than those contained in the ABL Credit Facility, the Term Loan Credit Facility, this Indenture, the Existing Notes Indenture, existing Indebtedness or such agreement prohibits other agreements as in effect on the encumbrance of solely the property or assets date of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiaryacquisition;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17C) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, to an agreement or instrument referred to in clauses clause (a) or (b) of clause (1) to (16) of this Section 3.4(b) 4.11 or this clause (16) (an “Initial Agreement”c) or contained in any amendment, supplement modification, restatement, renewal, extension, increase, supplement, refunding, or other modification to replacement of an agreement referred to in clauses clause (a) or (b) of clause (1) to (16) of this Section 3.4(b) 4.11 or this clause (17c); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or instrument amendment, modification, restatement, renewal, extension, increase, supplement, refunding, or replacement are no less favorable in any material respect not materially more restrictive on the whole to the Holders taken as a whole than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements on the Issue Date;
(D) existing under, by reason of or with respect to Refinancing Indebtedness; provided, that the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which agreements governing such refinancing or amendmentRefinancing Indebtedness are not materially more restrictive, supplement taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(E) provisions restricting cash or other modification relates deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(F) existing under, by reason of or with respect to customary provisions contained in leases or licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(G) agreements entered into between a Foreign Restricted Subsidiary and another Foreign Restricted Subsidiary which second Foreign Restricted Subsidiary is not a Subsidiary of the first Foreign Restricted Subsidiary to the extent such agreements relate solely to such Foreign Subsidiaries and do not affect in any material respect the Issuer’s or any Subsidiary Guarantor’s ability to make principal and interest payments on the Notes, as determined in good faith by the CompanyIssuer;
(H) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of some or all of the Capital Stock or any property and assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(I) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness permitted to be Incurred under this Indenture, or any agreement pursuant to which such Indebtedness was issued;
(J) restrictions or conditions governing any Indebtedness Incurred in connection with Permitted Receivables Financing if such restrictions or conditions apply only to the Receivables Assets that are the subject of the Permitted Receivables Financing, and restrictions or conditions imposed on any Receivables Subsidiary in connection with any Permitted Receivables Financing;
(K) provisions limiting the disposition or distribution of assets or property or transfer of Capital Stock in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, limited liability company organizational documents, and other similar agreements entered into in the ordinary course of business, consistent with past practice or with the approval of the Board of Directors of the Issuer (or the Board of Directors of any Parent Entity), which limitation is applicable only to the assets, property or Capital Stock that are the subject of such agreements;
(L) restrictions on cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(M) customary provisions in joint venture agreements, operating or similar agreements, asset sale agreements and stock sale agreements arising in connection with the entering into of such transactions;
(N) any restriction arising under applicable law, rule, regulation or administrative or court order;
(O) any encumbrance or restriction existing under or by reason of the ABL Credit Facility or the Term Loan Credit Facility;
(P) any encumbrance or restriction existing under any other Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any Restricted Subsidiary that is incurred subsequent to the Issue Date pursuant to the provisions of Section 4.09; provided that either (A) the provisions relating to such encumbrance or restriction contained in such Indebtedness are no less favorable to the Issuer, taken as a whole, as determined by the Issuer in good faith, than the provisions contained in the ABL Credit Facility, the Term Loan Credit Facility or the Existing Notes Indenture, in each case, as in effect on the Issue Date or (B) any encumbrance or restriction contained in such indebtedness that does not (except upon a default or event of default thereunder) materially impair the Issuer’s ability, as determined by the Issuer in good faith, to make payments of interest and principal on the Notes when due;
(Q) any encumbrance or restriction with respect to a Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Issuer or any other Restricted Subsidiary other than the assets and property of such Subsidiary; and
(R) any encumbrance or restriction contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages;
(2) with respect to clause (a)(C) above:
(A) any encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(B) any encumbrance or restriction 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 thereof not otherwise prohibited by this Indenture;
(C) any encumbrance or restriction existing under, by reason of or with respect to (i) purchase money obligations for property acquired in the ordinary course of business or (ii) capital leases or operating leases that impose encumbrances or restrictions on the property so acquired or covered thereby;
(D) any encumbrance or restriction 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 thereof in any manner material to the Issuer or any Restricted Subsidiary thereof;
(E) non-assignment provisions or subletting restrictions in contracts, leases and licenses entered into in the ordinary course of business;
(F) encumbrances on property that exist at the time the property was acquired by the Issuer or a Restricted Subsidiary, provided such encumbrances were not put in place in anticipation of such acquisition;
(G) customary provisions in asset sale agreements and stock sale agreements arising in connection with the entering into of such transactions; and
(3) any encumbrances or restrictions of the type referred to in clauses (a)(A), (a)(B) and (a)(C) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in Sections 4.11(a)(1) and 4.11(a)(2); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings (other than with respect to the ABL Credit Facility or the Term Loan Credit Facility) are, in the good faith judgment of the Issuer, no more restrictive on the whole 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.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary, or any requirement that such loans or advances made to the Issuer or any Restricted Subsidiary cannot be secured, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.07(a) shall hereof will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Original Issue Date, 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 materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Original Issue Date (as determined in good faith by the Issuer);
(2) any encumbrance [Reserved];
(3) encumbrances or restriction pursuant to restrictions existing under or by reason of this Indenture, the Notes, the Note Guarantees, the Senior Notes, the Senior Notes Collateral DocumentsIndentures, the Holdco Notes, the Holdco Notes Guarantee, the Holdco Notes Indenture, the Existing Senior Secured Notes and the guarantees thereof, the New Credit Facility and the guarantees thereof, the Intercreditor Agreement, any Additional Intercreditor Agreement Agreement, and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance SubsidiaryNotes Security Documents;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which (ii) such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each case, other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionSubsidiary) and outstanding on such date; provided that, for the purposes of this clause (4Section 4.07(b)(4), if another Person is the Successor Company, or any Subsidiary thereof or thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise refinancesextends, renews, refunds, refinances or replaces an agreement or instrument referred to in clauses (1Section 4.07(b)(1), Section 4.07(b)(3) to (16) of this or Section 3.4(b4.07(b)(4) or this clause (16Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1Section 4.07(b)(1), Section 4.07(b)(3) to (16) of this or Section 3.4(b4.07(b)(4) or this clause (17Section 4.07(b)(5); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Issuer);
(6) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements;
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary; or
(D) pursuant to the terms of any license, authorization, concession or permit;
(7) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(8) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchange;
(11) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(12) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(13) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Original Issue Date pursuant to Section 4.04 hereof if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than (i) the encumbrances and restrictions contained in the New Credit Facility on the Original Issue Date, together with the security documents associated therewith, if any, and the Intercreditor Agreement, as in effect on or immediately prior to the Original Issue Date or (ii) is customary in comparable financings (as determined in good faith by the Issuer) and where, in the case of clause (ii), the Issuer determines at the time of issuance of such Indebtedness that such encumbrances or restrictions (x) will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes as and when they become due or (y) such encumbrances and restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness;
(14) any encumbrance or restrictions arising in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing that, in the good faith determination of an Officer or the Board of Directors of the Company, are necessary or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06 hereof.
(c) Any encumbrance or restriction subject to Section 4.07 that is created or becomes effective following the Original Issue Date but on or prior to the Issue Date shall be deemed to be incurred under the provisions of this Indenture corresponding to the provisions under which such encumbrance or restriction was originally created or became effective or subsequently reclassified under the Original 2026 Notes Indenture (as of the relevant date of determination thereunder and without re-testing compliance with such provisions as of the Issue Date), and to the extent such encumbrance or restriction would not be so permitted to be created or become effective under this Indenture, such encumbrance or restriction will be deemed to have been outstanding on the Original Issue Date, so that it is classified as permitted under Section 4.07(b)(1) hereof.
Appears in 1 contract
Sources: Indenture (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company Parent Guarantor shall not, and shall not permit any of its Restricted Subsidiary to, Subsidiaries to create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Parent Guarantor or any Restricted Subsidiary;
(2ii) pay any Indebtedness owed to the Parent Guarantor or any Restricted Subsidiary;
(iii) make any loans or advances to the Company Parent Guarantor or any Restricted Subsidiary; or
(3iv) sell, lease or transfer any of its property properties or assets to the Company Parent Guarantor or any Restricted Subsidiary; provided provided, that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock or ordinary shares and (y) the subordination of (including the application of any payment blockage, standstill requirements toor turnover requirements) loans or advances made to the Company Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Company Parent Guarantor or any such Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.15(a) above shall not prohibitprohibit encumbrances or restrictions existing under, by reason of or with respect to:
(1i) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (governmental license, permit or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryconcession;
(4ii) an agreement in effect at or entered into on the Utilization Date;
(iii) an agreement or instrument (a "Refinancing Agreement") effecting a Refinancing of Indebtedness or Disqualified Stock incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument or obligation in effect or entered into on the Utilization Date (an "Initial Agreement") or contained in any encumbrance amendment, supplement or restriction other modifications to an Initial Agreement (an "Amendment"); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment are not materially less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement relates (as determined in good faith by the Parent Guarantor);
(iv) a Restricted Subsidiary pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred by such Restricted Subsidiary on or before prior to the date on which such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets Parent Guarantor (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionParent Guarantor) and outstanding on such date; provided that, for the purposes of this clause ;
(4), if another Person is the Successor Company, v) any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5A) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness or Disqualified Stock permitted to be Incurred subsequent to the Issue Utilization Date pursuant to the provisions of Section 3.2 4.06 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in the Super-Priority Subscription Agreement Documents (as determined in good faith by the Parent Guarantor) or (ii) if the encumbrances and restrictions, taken as a whole, are not more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the CompanyParent Guarantor) and where either (Ax) the Company Parent Guarantor determines at the time of entry into such agreement or instrument that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, affect the Company’s Parent Guarantor's ability to make principal or and interest payments on the Notes as and when they come due or (By) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Indebtedness; (B) constituting an intercreditor agreement on terms substantially equivalent to the Intercreditor Agreement; or instrument;
(15C) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant relating to any Floor Plan Facility customary for inventory and floor plan financing in loan or advance by the automobile industry; or
(17) any encumbrance or restriction pursuant Parent Guarantor to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant toRestricted Subsidiary subsequent to the Utilization Date, or provided that otherwise refinances, an agreement or instrument referred with respect to in clauses (1) to (16) of this Section 3.4(b) or this clause (16C) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in the Initial Senior Credit Agreement or Initial Agreements and the Intercreditor Agreement (as in effect on the Utilization Date);
(vi) a Restricted Subsidiary pursuant to which such refinancing or amendment, supplement an agreement (x) entered into for the sale or other modification relates disposition of Capital Stock or assets of such Restricted Subsidiary (as determined including by way of merger or consolidation) pending the closing of such sale or disposition or (y) relating to the distribution or disposition of assets in good faith a joint venture;
(vii) any encumbrance or restriction (x) on cash or other deposits or net worth imposed by customers or suppliers or (y) permitted under Section 4.08;
(viii) customary non-assignment provisions in leases governing leasehold interests to the Company)extent such provisions restrict the transfer of the lease or the property leased thereunder or the subletting of such property;
(ix) any escrow agreement, pledge of proceeds of Asset Dispositions, security agreement or mortgage securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such escrow agreement, pledge of proceeds of Asset Dispositions, security agreements or mortgages;
(x) any agreement relating to Purchase Money Indebtedness for property acquired and Capital Lease Obligations of a type described in subsection (a)(iv) above that impose restrictions on the property so acquired; and
(xi) pursuant to Hedging Obligations.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4Section 3.4(b)(4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements agreements, organizational documents and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Qualified Securitization Facility, Floor Plan Facility Financing or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Issue Date pursuant to Section Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the First Lien Credit Agreement, together with the security documents associated therewith, or this Indenture as in effect on the Issue Date, (ii) the encumbrances and restrictions contained in the ABL Credit Agreement, together with the security documents associated therewith, or this Indenture as in effect on the Issue Date or (iii) in comparable financings (as determined in good faith by the Company) and where where, in the case of clause (iii), either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1716) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1Sections 3.4(b)(1) to (16) of this Section 3.4(b3.4(b)(15) or this clause (16Section 3.4(b)(16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1Sections 3.4(b)(1) to (16) of this Section 3.4(b3.4(b)(15) or this clause (17Section 3.4(b)(16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are either (a) no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)) or (b) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes.
Appears in 1 contract
Sources: Indenture (Option Care Health, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary toSubsidiary:
(1a) to pay dividends or make any other distributions in cash or otherwise on its Capital Stock or any other interest or participation in, or measured by the profits of the Company or such Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;Company,
(2b) to make any loans or advances to the Company or to any Restricted Subsidiary; Subsidiary or
(3c) sell, lease or to transfer any of its property or assets to the Company or to any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) except any encumbrance or restriction pursuant to existing under or by reason of
(ai) any Credit the Bank Facility or (b) any other agreement or instrument as in effect at or entered into on or prior to the Issue Date;
(2ii) any encumbrance or restriction pursuant to this Indenture, the Notes, this Indenture or the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3iii) any instrument governing Acquired Indebtedness, which encumbrance or restriction pursuant is not applicable to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (Person or the status properties or assets of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person, other than the Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property properties or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or Person so acquired;
(iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Refinancing Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses clause (1i) to (16) of this Section 3.4(bii) or this clause (17iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or instrument are no less favorable in any material respect to the Holders taken as a whole Noteholders than the encumbrances and restrictions contained in such agreements governing the Initial Agreement Indebtedness being refinanced;
(v) customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or Initial Agreements the property leased thereunder;
(vi) security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to which the extent such refinancing restrictions restrict the transfer of the property subject to such security agreements or amendment, supplement or other modification relates (as determined in good faith by the Company).mortgages; and
Appears in 1 contract
Sources: Indenture (Fresh Foods Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note GuaranteesDocuments;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Qualified Securitization Facility, Floor Plan Facility Financing or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the Collateral Documents associated therewith, or this Indenture as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where where, in the case of clause (ii), either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1716) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (1) to (16) of this Section 3.4(b) above or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (1) to (16) of this Section 3.4(b) above or this clause (1716); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Sources: Indenture (Avaya Holdings Corp.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall and any Permitted Affiliate Parent will not, and shall will not permit any Restricted Subsidiary (other than the Borrowers) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Borrowers) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(2) make any loans or advances to the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; oror 63529049_1
(3) sell, lease or transfer any of its property or assets to the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; provided that (xa) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (yb) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.08(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or entered into on or prior to the Issue date of this 2017 Amendment Effective Date, including, without limitation, this Agreement, the Existing Senior Secured Notes Indentures, the Super Senior Credit Facilities Agreement, the Existing Senior Indentures, the Intercreditor Agreement and the Security Documents and any related documentation, in each case, as in effect on the 2017 Amendment Effective Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary or was merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company, a Permitted Affiliate Parent or any other Restricted Subsidiary other than the assets and property so acquired and provided, further, that for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(53) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3) or contained in any amendment, supplement, restatement or other modification to an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3); provided, however, that the encumbrances and restrictions, taken as a whole, with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Finance Parties than the encumbrances and restrictions contained in such agreements referred to in Section 4.08(b)(1) or Section 4.08(b)(2) (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent); 63529049_1
(4) in the case of Section 4.08(a)(3), any encumbrance or restriction: :
(iA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreement; contract;
(iiB) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Indenture or Agreement securing Indebtedness of the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; ;
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; or
(D) contained in operating leases for real property and restricting only the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(5) any encumbrance or restriction pursuant to (A) Purchase Money Obligations for property acquired in the ordinary course of business or (B) Capitalized Lease Obligations permitted under this Agreement, in each case, that either (i) impose encumbrances or restrictions of the nature described in Section 4.08(a)(3) on the property so acquired or (ii) are customary in connection with Purchase Money Obligations, Capitalized Lease Obligations and mortgage financings for property acquired in the ordinary course of business;
(6) any encumbrance or restriction pursuant to arising in connection with, or any contractual requirement Incurred with respect to, any Purchase Money Obligations and Capitalized Lease Obligations permitted under this IndentureNote, other Indebtedness or a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in each casethe good faith determination of the Board of Directors or senior management of the Company or a Permitted Affiliate Parent, that impose encumbrances or restrictions on the subject propertyare necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction (A) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement (or option to enter into such contract) entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; or (B) arising by reason of contracts for the sale of assets, including customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale and disposition of all or substantially all assets of such Subsidiary or conditions imposed by governmental authorities or otherwise resulting from dispositions required by governmental authorities;
(8) (A) customary provisions in leases, licenses, shareholder asset sale agreements, joint venture agreementsagreements and other agreements and instruments entered into by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in the ordinary course of business or (B) in the case of a Subsidiary that is not a Wholly-Owned Subsidiary, encumbrances, restrictions and conditions imposed by its organizational documents and or any related shareholders, joint venture or other similar agreements and instruments;(including restrictions on the payment of dividends or other distributions); 63529049_1
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or regulation, governmental license, order, concession, franchise, or permit or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging ObligationsCurrency Agreements, Commodity Agreements or Interest Rate Agreements;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue 2017 Amendment Effective Date pursuant to Section 3.2 4.09 if (a) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders Finance Parties than the encumbrances and restrictions contained in the Super Senior Credit Facilities Agreement, the Existing Senior Secured Notes and the Intercreditor Agreement, in each case, as in effect on the 2017 Amendment Effective Date (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent) or (b) such encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Finance Parties than is customary in comparable financings (as determined conclusively in good faith by the CompanyBoard of Directors or senior management of the Company or a Permitted Affiliate Parent) and where and, in each case, either (Ai) the Company determines at the time of entry into such agreement or instrument a Permitted Affiliate Parent reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the Company’s Borrower's ability to make principal or interest payments on the Notes Loans as and when they come due or (Bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance if a default occurs in respect of a default payment or financial covenant relating to such agreement or instrument;Indebtedness; and
(1513) any encumbrance or restriction existing arising by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing non-assignment provisions in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)agreements.
Appears in 1 contract
Sources: Additional Facility Accession Agreement (Liberty Global PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company and QS Wholesale shall not, and the Company shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of QS Wholesale or any Restricted Subsidiary to:
: (1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations obligation owed to the Company Company, QS Wholesale or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock); (y2) make any loans or advances to the Company, QS Wholesale or any Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Company, QS Wholesale or any Restricted Subsidiary to other Indebtedness Incurred by the Company Company, QS Wholesale or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); provided further that or (3) transfer any of its property or assets to the issuance of such Preferred Stock and the incurrence of such IndebtednessCompany, including payments thereon, otherwise comply with this IndentureQS Wholesale or any Restricted Subsidiary.
(b) The provisions of paragraph (a) of this Section 3.4(a) 3.6 shall not prohibit:
: (1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4i) any encumbrance or restriction pursuant to an agreement in effect at or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or mergedIssue Date, consolidated or otherwise combined with or into the Company or any Restricted Subsidiaryincluding, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration inwithout limitation, or to provide all or any portion of the funds utilized to consummatethis Indenture, the transaction or series indentures governing the Existing Boardriders Notes and the Senior Notes, the ABL Credit Facility and the EMEA Lines of Credit and any related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) documentation and outstanding on such dateHedging Obligations; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5ii) any encumbrance or restriction:
(ia) that restricts in a customary manner the subletting, assignment or transfer of any purchase money obligations for property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into acquired in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof business and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivb) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of Section 3.6(a) on the subject property;
property so acquired; (7vii) any encumbrance 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 Company, are necessary to effect such Qualified Receivables Transaction; (viii) any restriction with respect to QS Wholesale or a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company QS Wholesale or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
, subject to, in the case of QS Wholesale, compliance with the provisions of Section 4.1(a); (8) ix) any customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents agreements and other similar agreements entered into in the ordinary course of business; (x) net worth provisions or other customary provisions in leases or subleases and instruments;
other agreements entered into by the Company, QS Wholesale or any Restricted Subsidiary in the ordinary course of business; (9xi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order; (xii) customary restrictions contained in licenses or sublicenses related to, or required by any regulatory authority;
(10) any encumbrance or restriction on cash copyrights, patents, trademarks or other deposits or net worth imposed by customers under intellectual property and other agreements entered into in the ordinary course of business;
; and (11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15xiii) any encumbrance or restriction existing under, by reason of or with respect to Indebtedness of the Company, QS Wholesale or any lien permitted Restricted Subsidiary not prohibited to be incurred under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industrythis Indenture; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained are, in any such agreement or instrument are the good faith judgment of the Company, no less favorable more restrictive in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements agreements referred to which such refinancing or amendment, supplement or other modification relates in clause (as determined in good faith by the Company)i) above.
Appears in 1 contract
Sources: Indenture (Quiksilver Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.08(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility the Senior Facilities Agreement, (b) the Encore Private Placement Notes Agreement, or (bc) any other agreement or instrument (including the Existing Cabot Notes Indentures the Existing Encore Notes Indentures), in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(173) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1Section 4.08(b)(1) to (16) of this or Section 3.4(b4.08(b)(2) or this clause (16Section 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1Section 4.08(b)(1) to (16) of this or Section 3.4(b4.08(b)(2) or this clause (17Section 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such the Company or any Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company);
(4) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements, debt purchase agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, the terms of any license, authorization, concession or permit or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09 if (a) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) as is customary in comparable financings (as determined in good faith by the Company)or (b) the Company determines at the time such Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes;
(12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Board of Directors of the Company, are necessary or advisable;
(13) any encumbrance or restriction existing by reason of any lien permitted under Section 4.12;
(14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions under Section 4.11(b) provided that the terms and conditions of any such encumbrances or restrictions are, in the good faith judgment of the Board of Directors of the Company, no more restrictive in any material respect than those under or pursuant to the agreement so extended, renewed, refinanced or replaced.
Appears in 1 contract
Sources: Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and or the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (iii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iiii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Qualified Securitization Facility, Floor Plan Facility Financing or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (BA) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1716) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (1615) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (1615) of this Section 3.4(b) or this clause (1716); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Sources: Indenture (Carvana Co.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2ii) make any loans or advances to the Company or any Restricted Subsidiary; or
(3iii) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(aClause (a) shall above will not prohibit:
(1i) any encumbrance or restriction pursuant to (aA) any Credit Facility (including the Credit Documents and the Bridge Facilities) or (bB) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Closing Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4ii) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this sub-clause (4ii), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses sub-clause (1) to (16) of this Section 3.4(bi) or (ii) above or this sub-clause (16iii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses sub-clause (1) to (16) of this Section 3.4(bi) or (ii) above or this sub-clause (17iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company);
(iv) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Agreement to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(v) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(ix) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(x) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(xi) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to Section 10.1 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (A) the encumbrances and restrictions contained in this Agreement, together with the Security Documents associated therewith as in effect on the Closing Date or (B) in comparable financings (as determined in good faith by the Company) and where, in the case of paragraph (B), the Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrowers’ ability to make principal or interest payments on the Loans or Unpaid Drawings;
(xii) [Reserved]; or
(xiii) any encumbrance or restriction existing by reason of any Lien permitted under Section 10.3.
Appears in 1 contract
Sources: Secured Revolving Credit Agreement (NXP Manufacturing (Thailand) Co., Ltd.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.08(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility (including the Senior Finance Documents) or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(173) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b4.08(b)(l), 4.08(b)(2) or this clause (164.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b4.08(b)(l), 4.08(b)(2) or this clause (174.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company);
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument (a) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.05 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith, as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of clause (ii), the Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Issuers’ ability to make principal or interest payments on the Notes; or
(12) any encumbrance or restriction existing by reason of any lien permitted under Section 4.07.
Appears in 1 contract
Sources: Senior Unsecured Indenture (NXP Manufacturing (Thailand) Co., Ltd.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.05
(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (including the ABL Facility), (b) the Intercreditor Agreement and any Additional Intercreditor Agreement, (c) the Existing AMP Indentures, Existing AMP Notes or the Existing Note Guarantees and (d) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Guarantees or the Security Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4)clause, if another Person is the Successor CompanyCompany (as defined below), any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance encumbrance, restriction or restriction: condition:
(ia) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; ;
(iib) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; ;
(iiic) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its the Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or or
(ivd) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary (other than the Issuer and the Affiliate Guarantors) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Issuer and the Affiliate Guarantors) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (y) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.08(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or entered into on or prior to the Issue Date, including, without limitation, this Indenture, the Existing Senior Secured Notes Indentures, the Existing Senior Notes Indentures, the Senior Notes Indenture, the Senior Credit Facility, the Intercreditor Deeds, the Security Documents and any related documentation, in each case, as in effect on the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, merged or consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and provided, further, that for the purposes of this clause (4)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(53) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in clause (1) or (2) of this Section 4.08(b) or this clause (3) or contained in any amendment, supplement or other modification to an agreement referred to in clause (1) or (2) of this Section 4.08(b) or this clause (3); provided, however, that the encumbrances and restrictions, taken as a whole, with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (1) or (2) of this Section 4.08(b) (as determined in good faith by the Board of Directors or senior management of the Company);
(4) in the case of Section 4.08(a)(3), any encumbrance or restriction: :
(iA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreement; contract;
(iiB) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; or
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(65) any encumbrance or restriction pursuant to (A) Purchase Money Obligations for property acquired in the ordinary course of business and (B) Capitalized Lease Obligations permitted under this Indenture, in each case, case that impose encumbrances or restrictions of the nature described in Section 4.08(a)(3) on the subject propertyproperty so acquired;
(6) 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 or senior management of the Company, are necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder asset sale agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, governmental license or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;Currency Agreements, Commodity Agreements or Interest Rate Agreements; and
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 3.2 4.09 if (A) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in the Senior Credit Facility, the Existing Senior Secured Notes Indentures and the Group Intercreditor Deed, in each case, as in effect on the Issue Date (as determined in good faith by the Board of Directors or senior management of the Company) or (B) such encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Board of Directors or senior management of the Company) and where and, in each case, either (Ai) the Company determines at the time of entry into such agreement or instrument reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the CompanyIssuer’s ability to make principal or interest payments on the Notes as and when they come due or (Bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance if a default occurs in respect of a default payment or financial covenant relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)Indebtedness.
Appears in 1 contract
Sources: Indenture (Liberty Global PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall and any Permitted Affiliate Parent will not, and shall will not permit any Restricted Subsidiary (other than the Loan Parties) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Loan Parties) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary;
(2) make any loans or advances to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (y) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The preceding provisions of Section 3.4(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or at, entered into or substantially agreed on the Effective Date, including, without limitation, this Agreement, the other Loan Documents, the Covenant Agreement, the Proceeds Loan Agreement, the Proceeds Loan Collateral Documents and any related documentation, in each case, as in effect, or prior to substantially agreed, on the Issue Effective Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted SubsidiarySubsidiary or designated a Permitted Affiliate Parent, an Affiliate Subsidiary or was designated as a Restricted Subsidiary (or on became a Restricted Subsidiary as a result thereof), or which such agreement or instrument is assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary or was merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided thatthat any such encumbrance or restriction shall not extend to any assets or property of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary other than the assets and property so acquired; provided, further, that for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(53) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3) or contained in any amendment, supplement, restatement or other modification to an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3); provided that the encumbrances and restrictions, taken as a whole, with respect to the Company, such Permitted Affiliate Parent or such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Finance Parties than the encumbrances and restrictions contained in such agreements referred to in Section 4.08(b)(1) or Section 4.08(b)(2) (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(4) in the case of Section 4.08(a)(3), any encumbrance or restriction: :
(iA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreement; contract;
(iiB) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Indenture or Agreement securing Indebtedness of the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; ;
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; or
(D) contained in operating leases for real property and restricting only the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(5) any encumbrance or restriction pursuant to (A) Purchase Money Obligations for property acquired in the ordinary course of business or (B) Capitalized Lease Obligations permitted under this Agreement, in each case, that either (i) impose encumbrances or restrictions of the nature described in Section 4.08(a)(3) on the property so acquired or (ii) are customary in connection with Purchase Money Obligations, Capitalized Lease Obligations and mortgage financings for property acquired in the ordinary course of business (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(6) any encumbrance or restriction pursuant to arising in connection with, or any contractual requirement Incurred with respect to, any Purchase Money Obligations and Capitalized Lease Obligations permitted under this IndentureNote, other Indebtedness or a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in each casethe good faith determination of the Board of Directors or senior management of the Company or a Permitted Affiliate Parent, that impose encumbrances or restrictions on the subject propertyare necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction (A) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement (or option to enter into such agreement) entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositiondisposition or (B) arising by reason of contracts for the sale of assets, including customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale and disposition of all or substantially all assets of such Subsidiary or conditions imposed by governmental authorities or otherwise resulting from dispositions required by governmental authorities;
(8) (A) customary provisions in leases, licenses, shareholder asset sale agreements, joint venture agreementsagreements and other agreements and instruments entered into by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in the ordinary course of business or (B) in the case of a joint venture or a Subsidiary that is not a Wholly-Owned Subsidiary, encumbrances, restrictions and conditions imposed by its organizational documents and or any related shareholders, joint venture or other similar agreements and instruments(including restrictions on the payment of dividends or other distributions);
(9) encumbrances or restrictions arising or existing by reason of applicable law Law or any applicable rule, regulation or regulation, governmental license, order, concession, franchise, or permit or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging ObligationsCurrency Agreements, Commodity Agreements or Interest Rate Agreements;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Effective Date pursuant to Section 3.2 4.09 if (A) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders Finance Parties than the encumbrances and restrictions contained in this Agreement the other Loan Documents, and any related documentation, in each case, as in effect on the Effective Date (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent) or (B) such encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Finance Parties than is customary in comparable financings (as determined conclusively in good faith by the CompanyBoard of Directors or senior management of the Company or a Permitted Affiliate Parent) and where and, in each case, either (Ai) the Company determines at the time of entry into such agreement or instrument a Permitted Affiliate Parent reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the Company’s Borrowers’ ability to make principal or interest payments on the Notes Loans as and when they come due or (Bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance if a default occurs in respect of a default payment or financial covenant relating to such agreement or instrumentIndebtedness;
(1513) any encumbrance or restriction existing arising by reason of any lien permitted under Section 3.6;customary non-assignment provisions in agreements; and
(1614) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Intercreditor Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(y2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.or
(b3) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The provisions of Section 3.4(a) shall the preceding paragraph will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4i) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the Issue Date, including, without limitation, this Indenture, the Securities, the Exchange Securities issued in an Exchange Offer pursuant to the Registration Rights Agreement, the Subsidiary Guarantees, the Collateral Documents, the Intercreditor Agreement and the Senior Secured Credit Agreement (and related documentation) in effect on such date;
(ii) any encumbrance or restriction with respect to a Person or pursuant to an agreement relating to any Capital Stock or Indebtedness of a Person, entered into Incurred by such Person on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as became a Restricted Subsidiary or on which such agreement was acquired by, merged into or instrument is assumed by consolidated with the Company or any a Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by by, merged into or consolidated with the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such the transaction) and outstanding on such date; , provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or that any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does restriction shall not extend to any other asset assets or property of the Company or such any other Restricted Subsidiary or other than the assets or and property so acquired and that, in the case of another Restricted Subsidiary; or (iv) Indebtedness, was permitted to be Incurred pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiarythis Indenture;
(6iii) any encumbrance or restriction pursuant to Purchase Money Obligations an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clauses (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect, taken as a whole, to the Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (3) of the first paragraph of this Section 3.4, Liens permitted to be incurred under the provisions of Section 3.6;
(a) purchase money obligations or mortgage financings for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 on the subject propertyproperty so acquired;
(7vi) any encumbrance restriction with respect to a Restricted Subsidiary (or restriction any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) vii) any customary provisions relating to the disposition or distribution of assets or property in leases, licenses, shareholder agreements, joint venture agreements, organizational documents asset sale agreements, stock sale agreements and other similar agreements and instrumentsentered into in the ordinary course of business;
(9viii) net worth provisions in leases and other agreements and provisions restricting cash or other deposits in agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10x) any encumbrance encumbrances or restriction on cash restrictions contained in indentures or debt instruments or other deposits debt arrangements Incurred or net worth imposed Preferred Stock issued by customers under Subsidiary Guarantors in accordance with Section 3.2, that are not more restrictive, taken as a whole, than those applicable to the Company in either this Indenture or the Senior Secured Credit Agreement on the Issue Date (which results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level);
(xi) encumbrances or restrictions contained in indentures or other debt instruments or debt arrangements Incurred or Preferred Stock issued by Restricted Subsidiaries that are not Subsidiary Guarantors subsequent to the Issue Date pursuant to clauses (5), (12), (13) or (14) of the second paragraph of Section 3.2; provided that such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Company’s ability to make anticipated principal or interest payments on the Securities (as determined by the Board of Directors of the Company);
(xii) encumbrances or restrictions contained in customary non-assignment provisions in leases, contracts, licenses or other agreements entered into in the ordinary course of business;; and
(11xiii) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will arising or agreed to in the ordinary course of business, not adversely affectrelating to Indebtedness, that do not, individually or in the aggregate, detract from the value of property or assets of Libbey Glass or any Restricted Subsidiary thereof in any manner material respect, the Company’s ability to make principal Libbey Glass or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)Subsidiary.
Appears in 1 contract
Sources: Indenture (Libbey Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary Subsidiary, or any prohibition on securing such loans or advances made to the Company or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.07(a) shall hereof will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date, 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 materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue Date (as determined in good faith by the Company);
(2) any encumbrance [Reserved];
(3) encumbrances or restriction pursuant to restrictions existing under or by reason of this Indenture, the Notes, the Existing Senior Notes, the Existing Senior Notes Collateral DocumentsIndentures, any the Existing Senior Secured Notes and the guarantees thereof, the Existing Senior Secured Notes Indentures, the Existing Credit Facility and the guarantees thereof, the Intercreditor Agreement (or any additional intercreditor agreement) and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance SubsidiarySenior Secured Notes Security Documents;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which (ii) such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each case, other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionSubsidiary) and outstanding on such date; provided that, for the purposes of this clause (4Section 4.07(b)(4), if another Person is the Successor Company, or any Subsidiary thereof or thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise refinancesextends, renews, refunds, refinances or replaces an agreement or instrument referred to in clauses (1Section 4.07(b)(1), Section 4.07(b)(3) to (16or Section 4.07(b)(4) of hereof or this Section 3.4(b) or this clause (164.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1Section 4.07(b)(1), Section 4.07(b)(3) to (16or Section 4.07(b)(4) of hereof or this Section 3.4(b) or this clause (174.07(b)(5); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company);
(6) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements;
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary; or
(D) pursuant to the terms of any license, authorization, concession or permit;
(7) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(8) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchange;
(11) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(12) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(13) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.04 hereof if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than (i) the encumbrances and restrictions contained in the Existing Credit Facility on the Issue Date, together with the security documents associated therewith, if any, and the Intercreditor Agreement, as in effect on or immediately prior to the Issue Date or (ii) is customary in comparable financings (as determined in good faith by the Company) and where, in the case of clause (ii), the Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions (x) will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes as and when they become due or (y) such encumbrances and restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness;
(14) any encumbrance or restrictions arising in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing that, in the good faith determination of an Officer or the Board of Directors of the Company, are necessary or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06 hereof.
Appears in 1 contract
Sources: Indenture (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
Company, (2ii) make any loans or advances to the Company or any Restricted Subsidiary; or
(3iii) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; (provided that (x) the dividend or liquidation priority between classes of Capital Stock, or subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall obligation, will not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness), including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibitexcept any encumbrance or restriction:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or entered into on or prior to the Issue Date;
(2) , any encumbrance or restriction pursuant to Credit Facility, this Indenture, the Notes, the Diversey Senior Notes Collateral Documents, any Intercreditor Agreement and Indenture or the Note GuaranteesDiversey Senior Notes;
(32) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (other than Capital Stock or except to the extent that such Indebtedness Incurred as consideration inwas incurred to finance, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with with, such transaction) and outstanding on such dateacquisition, merger or consolidation); provided that, that for the purposes of this clause (42), if another a Person other than the Company is the Successor CompanyCompany with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Company or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the such Successor Company;
(53) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any encumbrance amendment, supplement or restriction: other modification to an Initial Agreement (ian “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement; contract, (iiB) contained in mortgagesby virtue of any transfer of, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company transfer, option or right with respect to, or Lien on, any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such any Restricted Subsidiary that are subject not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to such agreement, the payment rights arising thereunder or extent restricting the proceeds thereof and does not extend to any other asset or property transfer of the Company property or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or subject thereto, (ivD) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
, (6E) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(75) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(96) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(107) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 3.2 407 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and where either (Ax) the Company determines at the time of entry into such agreement or instrument in good faith that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the Company’s ability to make principal or interest payments on the Notes or (By) such encumbrance or restriction applies only during the continuance if a default occurs in respect of a default payment or financial covenant relating to such agreement Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or instrument;
(15C) any encumbrance relating to Indebtedness of or restriction existing a Financing Disposition by reason or to or in favor of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)Special Purpose Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall and any Permitted Affiliate Parent will not, and shall will not permit any Restricted Subsidiary (other than the Borrowers) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Borrowers) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(2) make any loans or advances to the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; provided that (xa) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (yb) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.08(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or entered into on or prior to the Issue date of this 2017 Amendment Effective Date, including, without 63140965_9 limitation, this Agreement, the Existing Senior Secured Notes Indentures, the Super Senior Credit Facilities Agreement, the Existing Senior Indentures, the Intercreditor Agreement and the Security Documents and any related documentation, in each case, as in effect on the 2017 Amendment Effective Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary or was merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company, a Permitted Affiliate Parent or any other Restricted Subsidiary other than the assets and property so acquired and provided, further, that for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(53) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3) or contained in any amendment, supplement, restatement or other modification to an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3); provided, however, that the encumbrances and restrictions, taken as a whole, with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Finance Parties than the encumbrances and restrictions contained in such agreements referred to in Section 4.08(b)(1) or Section 4.08(b)(2) (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(4) in the case of Section 4.08(a)(3), any encumbrance or restriction: :
(iA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreement; contract;
(iiB) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Indenture or Agreement securing Indebtedness of the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions 63140965_9 restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; ;
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; or
(D) contained in operating leases for real property and restricting only the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(5) any encumbrance or restriction pursuant to (A) Purchase Money Obligations for property acquired in the ordinary course of business or (B) Capitalized Lease Obligations permitted under this Agreement, in each case, that either (i) impose encumbrances or restrictions of the nature described in Section 4.08(a)(3) on the property so acquired or (ii) are customary in connection with Purchase Money Obligations, Capitalized Lease Obligations and mortgage financings for property acquired in the ordinary course of business;
(6) any encumbrance or restriction pursuant to arising in connection with, or any contractual requirement Incurred with respect to, any Purchase Money Obligations and Capitalized Lease Obligations permitted under this IndentureNote, other Indebtedness or a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in each casethe good faith determination of the Board of Directors or senior management of the Company or a Permitted Affiliate Parent, that impose encumbrances or restrictions on the subject propertyare necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction (A) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement (or option to enter into such contract) entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; or (B) arising by reason of contracts for the sale of assets, including customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale and disposition of all or substantially all assets of such Subsidiary or conditions imposed by governmental authorities or otherwise resulting from dispositions required by governmental authorities;
(8) (A) customary provisions in leases, licenses, shareholder asset sale agreements, joint venture agreementsagreements and other agreements and instruments entered into by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in the ordinary course of business or (B) in the case of a Subsidiary that is not a Wholly-Owned Subsidiary, encumbrances, restrictions and conditions imposed by its organizational documents and or any related shareholders, joint venture or other similar agreements and instruments(including restrictions on the payment of dividends or other distributions);
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or regulation, governmental license, order, concession, franchise, or permit or required by any regulatory authority;; 63140965_9
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging ObligationsCurrency Agreements, Commodity Agreements or Interest Rate Agreements;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue 2017 Amendment Effective Date pursuant to Section 3.2 4.09 if (a) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders Finance Parties than the encumbrances and restrictions contained in the Super Senior Credit Facilities Agreement, the Existing Senior Secured Notes and the Intercreditor Agreement, in each case, as in effect on the 2017 Amendment Effective Date (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent) or (b) such encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Finance Parties than is customary in comparable financings (as determined conclusively in good faith by the CompanyBoard of Directors or senior management of the Company or a Permitted Affiliate Parent) and where and, in each case, either (Ai) the Company determines at the time of entry into such agreement or instrument a Permitted Affiliate Parent reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the Company’s Borrower's ability to make principal or interest payments on the Notes Loans as and when they come due or (Bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance if a default occurs in respect of a default payment or financial covenant relating to such agreement or instrument;Indebtedness; and
(1513) any encumbrance or restriction existing arising by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing non-assignment provisions in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)agreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall and any Permitted Affiliate Parent will not, and shall will not permit any Restricted Subsidiary (other than the Borrowers) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Borrowers) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary;
(2) make any loans or advances to the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; provided that (xa) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (yb) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.08(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or entered into on or prior to the Issue date of the First Amendment Effective Date, including, without limitation, this Agreement, the Existing Senior Secured Notes Indentures, the Senior Credit Facilities Agreement, the Existing Senior Indentures, the Intercreditor Agreement and the Security Documents and any related documentation, in each case, as in effect on the First Amendment Effective Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary or was merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company, a Permitted Affiliate Parent or any other Restricted Subsidiary other than the assets and property so acquired and provided, further, that for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(53) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3) or contained in any amendment, supplement, restatement or other modification to an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3); provided, however, that the encumbrances and restrictions, taken as a whole, with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Finance Parties than the encumbrances and restrictions contained in such agreements referred to in Section 4.08(b)(1) or Section 4.08(b)(2) (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(4) in the case of Section 4.08(a)(3), any encumbrance or restriction: :
(iA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreement; contract;
(iiB) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Indenture or Agreement securing Indebtedness of the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; ;
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; or
(D) contained in operating leases for real property and restricting only the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(5) any encumbrance or restriction pursuant to (A) Purchase Money Obligations for property acquired in the ordinary course of business or (B) Capitalized Lease Obligations permitted under this Agreement, in each case, that either (i) impose encumbrances or restrictions of the nature described in Section 4.08(a)(4) on the property so acquired or (ii) are customary in connection with Purchase Money Obligations, Capitalized Lease Obligations and mortgage financings for property acquired in the ordinary course of business;
(6) any encumbrance or restriction pursuant to arising in connection with, or any contractual requirement Incurred with respect to, any Purchase Money Obligations and Capitalized Lease Obligations permitted under this IndentureNote, other Indebtedness or a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in each casethe good faith determination of the Board of Directors or senior management of the Company or a Permitted Affiliate Parent, that impose encumbrances or restrictions on the subject propertyare necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction (A) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement (or option to enter into such contract) entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; or (B) arising by reason of contracts for the sale of assets, including customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale and disposition of all or substantially all assets of such Subsidiary or conditions imposed by governmental authorities or otherwise resulting from dispositions required by governmental authorities;
(8) (A) customary provisions in leases, licenses, shareholder asset sale agreements, joint venture agreementsagreements and other agreements and instruments entered into by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in the ordinary course of business or (B) in the case of a Subsidiary that is not a Wholly Owned Subsidiary, encumbrances, restrictions and conditions imposed by its organizational documents and or any related shareholders, joint venture or other similar agreements and instruments(including restrictions on the payment of dividends or other distributions);
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or regulation, governmental license, order, concession, franchise, or permit or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging ObligationsCurrency Agreements, Commodity Agreements or Interest Rate Agreements;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue First Amendment Effective Date pursuant to Section 3.2 4.09 if (a) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders Finance Parties than the encumbrances and restrictions contained in this Agreement, the Senior Credit Facilities Agreement, the Existing Senior Secured Notes and the Intercreditor Agreement, in each case, as in effect on the First Amendment Effective Date (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent) or (b) such encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Finance Parties than is customary in comparable financings (as determined conclusively in good faith by the CompanyBoard of Directors or senior management of the Company or a Permitted Affiliate Parent) and where and, in each case, either (Ai) the Company determines at the time of entry into such agreement or instrument a Permitted Affiliate Parent reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the CompanyBorrower’s ability to make principal or interest payments on the Notes Loans as and when they come due or (Bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance if a default occurs in respect of a default payment or financial covenant relating to such agreement or instrument;Indebtedness; and
(1513) any encumbrance or restriction existing arising by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing non-assignment provisions in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)agreements.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Liberty Global PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, to create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Parent Guarantor or any Restricted Subsidiary;
(2ii) pay any Indebtedness owed to the Parent Guarantor or any Restricted Subsidiary;
(iii) make any loans or advances to the Company Parent Guarantor or any Restricted Subsidiary; or
(3iv) sell, lease or transfer any of its property properties or assets to the Company Parent Guarantor or any Restricted Subsidiary; provided provided, that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock or ordinary shares and (y) the subordination of (including the application of any payment blockage, standstill requirements toor turnover requirements) loans or advances made to the Company Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Company Parent Guarantor or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.15(a) above shall not prohibitprohibit encumbrances or restrictions existing under, by reason of or with respect to:
(1i) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (governmental license, permit or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryconcession;
(4ii) an agreement in effect at or entered into on the Issue Date;
(iii) an agreement or instrument (a “Refinancing Agreement”) effecting a Refinancing of Indebtedness or Disqualified Stock incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument or obligation in effect or entered into on the Issue Date (an “Initial Agreement”) or contained in any encumbrance amendment, supplement or restriction other modifications to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment are not materially less favorable to the Finance Parties taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement relates (as determined in good faith by the Parent Guarantor);
(iv) a Restricted Subsidiary pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred by such Restricted Subsidiary on or before prior to the date on which such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets Parent Guarantor (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionParent Guarantor) and outstanding on such date; provided that, for the purposes of this clause ;
(4), if another Person is the Successor Company, v) any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5A) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness or Disqualified Stock permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 3.2 4.06 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders Finance Parties than the encumbrances and restrictions contained in the Senior Secured Credit Facility (as determined in good faith by the Parent Guarantor) or (ii) if the encumbrances and restrictions, taken as a whole, are not more disadvantageous to the Finance Parties than is customary in comparable financings (as determined in good faith by the CompanyParent Guarantor) and where either (Ax) the Company Parent Guarantor determines at the time of entry into such agreement or instrument that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, affect the CompanyParent Guarantor’s ability to make principal or and interest payments on the Notes Finance Documents as and when they come due or (By) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Indebtedness; (B) constituting an intercreditor agreement on terms substantially equivalent to the Intercreditor Agreement; or instrument;
(15C) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant relating to any Floor Plan Facility customary for inventory and floor plan financing in loan or advance by the automobile industry; or
(17) any encumbrance or restriction pursuant Parent Guarantor to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant toRestricted Subsidiary subsequent to the Issue Date, or provided that otherwise refinances, an agreement or instrument referred with respect to in clauses (1) to (16) of this Section 3.4(b) or this clause (16C) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole are not materially less favorable to the Finance Parties than the encumbrances and restrictions contained in the Initial Senior Credit Agreement or Initial Agreements and the Intercreditor Agreement (as in effect on the Issue Date);
(vi) a Restricted Subsidiary pursuant to which such refinancing or amendment, supplement an agreement (x) entered into for the sale or other modification relates disposition of Capital Stock or assets of such Restricted Subsidiary (as determined including by way of merger or consolidation) pending the closing of such sale or disposition or (y) relating to the distribution or disposition of assets in good faith a joint venture;
(vii) any encumbrance or restriction (x) on cash or other deposits or net worth imposed by customers or suppliers or (y) permitted under Section 4.08;
(viii) customary non-assignment provisions in leases governing leasehold interests to the Company)extent such provisions restrict the transfer of the lease or the property leased thereunder or the subletting of such property;
(ix) any escrow agreement, pledge of proceeds of Asset Dispositions, security agreement or mortgage securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such escrow agreement, pledge of proceeds of Asset Dispositions, security agreements or mortgages;
(x) any agreement relating to Purchase Money Indebtedness for property acquired and Capital Lease Obligations of a type described in subsection (a)(iv) above that impose restrictions on the property so acquired; and
(xi) pursuant to Hedging Obligations.
Appears in 1 contract
Sources: Senior Subscription Agreement (TPG Advisors IV, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall and any Permitted Affiliate Parent will not, and shall will not permit any Restricted Subsidiary (other than the Loan Parties) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Loan Parties) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary;
(2) make any loans or advances to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (y) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The preceding provisions of Section 3.4(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or at, entered into or substantially agreed on the Effective Date, including, without limitation, the Existing Credit Facilities (until the Closing Date), this Agreement, the other Loan Documents, the Collateral Documents and any related documentation, in each case, as in effect, or prior to substantially agreed, on the Issue Effective Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted SubsidiarySubsidiary or designated a Permitted Affiliate Parent, an Affiliate Subsidiary or was designated as a Restricted Subsidiary (or on became a Restricted Subsidiary as a result thereof), or which such agreement or instrument is assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary or was merged, merged or consolidated or otherwise combined with or into the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided thatthat any such encumbrance or restriction shall not extend to any assets or property of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary other than the assets and property so acquired; provided, further, that for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(53) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3) or contained in any amendment, supplement, restatement or other modification to an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3); provided that the encumbrances and restrictions, taken as a whole, with respect to the Company, such Permitted Affiliate Parent or such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Finance Parties than the encumbrances and restrictions contained in such agreements referred to in Section 4.08(b)(1) or Section 4.08(b)(2) (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(4) in the case of Section 4.08(a)(3), any encumbrance or restriction: :
(iA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreement; contract;
(iiB) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Indenture or Agreement securing Indebtedness of the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; ;
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (ivC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary; or
(D) contained in operating leases for real property and restricting only the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(5) any encumbrance or restriction pursuant to (A) Purchase Money Obligations for property acquired in the ordinary course of business or (B) Capitalized Lease Obligations permitted under this Agreement, in each case, that either (i) impose encumbrances or restrictions of the nature described in Section 4.08(a)(3) on the property so acquired or (ii) are customary in connection with Purchase Money Obligations, Capitalized Lease Obligations and mortgage financings for property acquired in the ordinary course of business (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(6) any encumbrance or restriction pursuant to arising in connection with, or any contractual requirement Incurred with respect to, any Purchase Money Obligations and Capitalized Lease Obligations permitted under this IndentureNote, other Indebtedness or a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in each casethe good faith determination of the Board of Directors or senior management of the Company or a Permitted Affiliate Parent, that impose encumbrances or restrictions on the subject propertyare necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction (A) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement (or option to enter into such agreement) entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositiondisposition or (B) arising by reason of contracts for the sale of assets, including customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale and disposition of all or substantially all assets of such Subsidiary or conditions imposed by governmental authorities or otherwise resulting from dispositions required by governmental authorities;
(8) (A) customary provisions in leases, licenses, shareholder asset sale agreements, joint venture agreementsagreements and other agreements and instruments entered into by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in the ordinary course of business or (B) in the case of a joint venture or a Subsidiary that is not a Wholly-Owned Subsidiary, encumbrances, restrictions and conditions imposed by its organizational documents and or any related shareholders, joint venture or other similar agreements and instruments(including restrictions on the payment of dividends or other distributions);
(9) encumbrances or restrictions arising or existing by reason of applicable law Law or any applicable rule, regulation or regulation, governmental license, order, concession, franchise, or permit or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging ObligationsCurrency Agreements, Commodity Agreements or Interest Rate Agreements;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Effective Date pursuant to Section 3.2 4.09 if (A) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders Finance Parties than the encumbrances and restrictions contained in this Agreement the other Loan Documents, and any related documentation, in each case, as in effect on the Effective Date (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent) or (B) such encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Finance Parties than is customary in comparable financings (as determined conclusively in good faith by the CompanyBoard of Directors or senior management of the Company or a Permitted Affiliate Parent) and where and, in each case, either (Ai) the Company determines at the time of entry into such agreement or instrument a Permitted Affiliate Parent reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the Company’s Borrowers’ ability to make principal or interest payments on the Notes Loans as and when they come due or (Bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance if a default occurs in respect of a default payment or financial covenant relating to such agreement or instrumentIndebtedness;
(1513) any encumbrance or restriction existing arising by reason of any lien permitted under Section 3.6;customary non-assignment provisions in agreements; and
(1614) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Intercreditor Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company Parent shall not, and shall not permit any Restricted Subsidiary that is not a Guarantor to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or (ii) pay any Indebtedness or other obligations owed to the Company Parent or any Restricted Subsidiary;
(2) make any loans or advances to the Company Parent or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Parent or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Company Parent or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (ai) any Credit Facility or (bii) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Completion Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiaryorder;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company Parent or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Parent or was merged, consolidated or otherwise combined with or into the Company Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company Parent or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company Parent or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessbusiness or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company Parent or such Restricted Subsidiary that are 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 Parent or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Parent or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject propertyproperty so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company Parent or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, sub-leases, licenses, sub-licenses, shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessbusiness or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Completion Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Qualified Securitization Facility, Floor Plan Facility Financing or Receivables Facility that, in the good faith determination of the CompanyParent, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Issue Completion Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith, or this Indenture as in effect on the Completion Date or (ii) in comparable financings (as determined in good faith by the CompanyParent) and where where, in the case of clause (ii), either (A) the Company Parent determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the CompanyParent’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(1716) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (1615) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (1615) of this Section 3.4(b) or this clause (1716); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the CompanyParent).
Appears in 1 contract
Sources: Indenture (RBC Bearings INC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability legal right of any Restricted Subsidiary to:
(1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in cash or otherwise on respect of its Capital Stock Stock, or pay any Indebtedness or other obligations owed obligation owed, to the Company or any other Restricted Subsidiary;
(2b) make any loans or advances to the Company or any other Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets Property to the Company or any other Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall . Such limitation will not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibitapply:
(1) any with respect to clauses (a), (b) and (c), to encumbrances and restrictions:
(A) in agreements and instruments as in effect on the Issue Date,
(B) relating to Indebtedness of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such encumbrance or restriction pursuant to (a) any Credit Facility was not created in anticipation of or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary Subsidiary, or
(C) that result from the renewal, refinancing, extension or was acquired by amendment of an agreement that is the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation subject of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4)c)(1)(A) or (B) above or clause (c)(2)(A) or (B) below, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are is not materially less favorable to the Holders of 9 3/8% Notes than in comparable financings those under or pursuant to the agreement so renewed, refinanced, extended or amended, and,
(as determined in good faith by the Company2) and where either with respect to clause (c) only, to:
(A) restrictions pursuant to Liens permitted to be Incurred and secured without also securing the Company determines at 9 3/8% Notes under Section 4.10 and that limit the time right of entry into the debtor to dispose of the Property subject to such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or Lien,
(B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing applicable to Property at the time it is acquired by reason of any lien permitted under Section 3.6;
(16) any the Company or a Restricted Subsidiary, so long as such encumbrance or restriction pursuant relates solely to any Floor Plan Facility customary for inventory the Property so acquired and floor plan financing was not created in the automobile industry; oranticipation of or in connection with such acquisition,
(17C) any encumbrance customary provisions restricting subletting or restriction pursuant to an agreement assignment of leases and customary provisions in other agreements that restrict assignment of such agreements or instrument effecting a refinancing of Indebtedness Incurred pursuant torights thereunder, or that otherwise refinances, an agreement or instrument referred to in clauses and
(1D) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and customary restrictions contained in asset sale agreements limiting the Initial Agreement or Initial Agreements to which transfer of such refinancing or amendment, supplement or other modification relates (as determined in good faith by assets pending the Company)closing of such sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.08(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility (including the Senior Finance Documents) or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date, including the indentures governing the Existing Secured Notes and the agreement governing the Term Loans;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(173) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b4.08(b)(1), 4.08(b)(2) or this clause (164.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b4.08(b)(1), 4.08(b)(2) or this clause (174.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company);
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument (a) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.05 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Revolving Credit Agreement, together with the security documents associated therewith, as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of clause (ii), the Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Issuers’ ability to make principal or interest payments on the Notes; or
(12) any encumbrance or restriction existing by reason of any lien permitted under Section 4.07.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.08(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility the Senior Facilities Agreement, or (b) any other agreement or instrument (including the Existing Secured Notes Indentures the Existing Unsecured Notes Indentures), in each case, in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(173) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1Section 4.08(b)(1) to (16) of this or Section 3.4(b4.08(b)(2) or this clause (16Section 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1Section 4.08(b)(1) to (16) of this or Section 3.4(b4.08(b)(2) or this clause (17Section 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such the Company or any Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company);
(4) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements, debt purchase agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, the terms of any license, authorization, concession or permit or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09 if (a) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) as is customary in comparable financings (as determined in good faith by the Company)or (b) the Company determines at the time such Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes;
(12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Board of Directors of the Company, are necessary or advisable;
(13) any encumbrance or restriction existing by reason of any lien permitted under Section 4.12;
(14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions under Section 4.11(b) provided that the terms and conditions of any such encumbrances or restrictions are, in the good faith judgment of the Board of Directors of the Company, no more restrictive in any material respect than those under or pursuant to the agreement so extended, renewed, refinanced or replaced.
Appears in 1 contract
Sources: Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary, other than a Subsidiary Guarantor, to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted SubsidiaryCompany;
(2) make any loans or advances to the Company or any Restricted SubsidiaryCompany; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such IndebtednessCompany, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibitexcept:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument in effect at or entered into on or prior to the Issue Date;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3A) any encumbrance or restriction pursuant to applicable lawlaw or an agreement in effect at or entered into on the Closing Date (including, rulewithout limitation, regulation this Indenture, the Senior Subordinated Note Indenture, the Credit Agreement, the Intercreditor Agreement or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiaryother Secured Debt Document) as a Captive Insurance Subsidiary;
(4) and any encumbrance or restriction pursuant to any Credit Facility of the Company or a Restricted Subsidiary;
(B) any encumbrance or restriction with respect to a Restricted Subsidiary or any of its Subsidiaries pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before Incurred by such Restricted Subsidiary prior to the date on which such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, consummate the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionCompany) and outstanding on such date; provided that, for which encumbrance or restriction is not applicable to the purposes Company or its Restricted Subsidiaries, or the properties or assets of this clause (4)the Company or its Restricted Subsidiaries, if another Person is other than the Successor CompanyRestricted Subsidiary, or the property or assets of the Restricted Subsidiary, so acquired, or any Subsidiary thereof or agreement the property or instrument assets of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor CompanySubsidiary;
(5C) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (A) or (B) of this covenant or this clause (C) or contained in any amendment to an agreement referred to in clause (A) or (B) of this covenant or this clause (C); provided, however, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment are not materially less favorable taken as a whole, as determined by the Board of Directors acting in good faith, to the Holders than the encumbrances and restrictions contained in such predecessor agreement;
(D) in the case of clause (3), any encumbrance or restriction: :
(i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that or right and is subject to a lease, license or similar contract or agreement, or the assignment or transfer of contained in any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that or
(ii) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such agreement prohibits encumbrance or restriction restricts the encumbrance transfer of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiarysecurity agreements;
(6E) with respect to a Restricted Subsidiary, any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions F) any encumbrances or restrictions contained in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instrumentsany Credit Facility extended to any Foreign Subsidiary of the Company;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14G) any encumbrance or restriction arising under or in connection with Indebtedness or other contractual requirements of a Receivables Entity in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(H) restrictions on the transfer of assets pursuant to an any Permitted Lien;
(I) any encumbrance or restriction arising under or in connection with any agreement or instrument relating to any Indebtedness, Indebtedness permitted to be Incurred subsequent to the Issue Closing Date pursuant to the provisions of Section 3.2 4.09 hereof, if (x) either (i) the encumbrances and restrictions encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in any the terms of such agreement or instrument taken as a whole are or (ii) the Company in good faith determines that such encumbrance or restriction will not cause the Company not to have the funds necessary to pay the principal of or interest on the Notes and (y) the encumbrance or restriction is not materially less favorable more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrumentfaith);
(15J) any encumbrance or restriction existing by reason arising under or in connection with any agreement or instrument governing Capital Stock of any lien permitted under Section 3.6;Person other than a Wholly Owned Subsidiary that is acquired after the Closing Date; and
(16K) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory arising under or in connection with this Indenture and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)Notes.
Appears in 1 contract
Sources: Indenture (Del Laboratories Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and any subordination of such Indebtedness or other obligations shall be deemed not to be an encumbrance or restriction on the ability to pay dividends or make any other distributions on Capital Stock);
(y2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed not to constitute such be an encumbrance or restrictionrestriction on the ability to make loans or advances); provided further that or
(3) transfer any of its property or assets to the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this IndentureCompany or any Restricted Subsidiary.
(b) The provisions of Section 3.4(a3.7(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or entered into on or prior to the Issue Date, including, without limitation, this Indenture, the Notes, the Subsidiary Guarantees, and the Senior Secured Credit Agreement (and related documentation);
(2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to any agreement or instrument that is in existence at the time such Person becomes a Restricted Subsidiary (and not Incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary); provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and that, in the case of Indebtedness, was permitted to be Incurred pursuant to this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable lawany agreement or instrument governing any Acquired Indebtedness or other agreement or instrument of any Person or related to property, rule, regulation assets or order Capital Stock of a Person acquired by or requirement, including merged into or consolidated with the Company or any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status ; provided, that such encumbrance or restriction (i) was not entered into in contemplation of the acquisition, merger or consolidation transaction, and (ii) shall not extend to any assets or property of the status Company or any other Restricted Subsidiary other than the assets and property so acquired and that, in the case of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance SubsidiaryIndebtedness, was permitted to be Incurred pursuant to this Indenture;
(4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or instrument refinancing of Indebtedness Incurred pursuant to an agreement referred to in any of clauses (1), (2) or (3) of this Section 3.7(b) or this clause (4) or contained in any amendment, restatement, modification, renewal, restructuring, supplement, extension, substitution, refunding, replacement or refinancing of an agreement referred to in any of such clauses; provided, however, that, in the good faith reasonable determination of the Company, the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect, taken as a Person whole, to the Holders than the encumbrances and restrictions contained in such agreements referred to in clauses (1), (2) or relating to any Capital Stock (3) of this Section 3.7(b) on the Issue Date or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was mergedmerged into a Restricted Subsidiary, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person whichever is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Companyapplicable;
(5) in the case of Section 3.7(a)(3), any encumbrance or restriction: :
(i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement; contract;
(ii) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; or
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations (i) purchase money obligations for property acquired in the ordinary course of business and (ii) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in Section 3.7(a)(3) on the subject propertyproperty so acquired;
(7) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or other disposition to a Person of all or substantially all the Capital Stock Stock, property or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such encumbrance or restriction) pending the closing of such sale or disposition;
(8) any customary provisions encumbrances or restrictions imposed pursuant to any agreement referred to in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instrumentsthe definition of "Permitted Business Investment";
(9) deposit arrangements or net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(10) in the case of Section 3.7(a)(3), any encumbrance or restriction that is a Lien otherwise permitted to be Incurred pursuant to Section 3.5;
(11) any encumbrance or restriction in respect of a Sale/Leaseback Transaction permitted under Section 3.6; and
(12) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Sources: Indenture (Columbus Energy Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
; (2) make any loans or advances to the Company or any Restricted Subsidiary; or
or (3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.,
(b) The provisions of Section 3.4(a4.07(a) shall hereof will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date;, and any amendments, restatements, modifications, renewals, supplements, refundings, ...
(2) any encumbrance [Reserved]; (3) encumbrances or restriction pursuant to restrictions existing under or by reason of this Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreementSenior Notes, the payment rights arising thereunder or Senior Notes Indentures, the proceeds thereof and does not extend to any other asset or property of Holdco Notes, the Company or such Restricted Subsidiary or Holdco Notes Guarantee, the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Holdco Notes Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).Existing Senio...
Appears in 1 contract
Sources: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted SubsidiarySubsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of such Indebtedness or other obligations shall be deemed not to be an encumbrance or restriction on the ability to pay dividends or make any other distributions on Capital Stock);
(2) make any loans or advances to the Company or any Restricted SubsidiarySubsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall be deemed not to be an encumbrance or restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.6(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or entered into on or prior to the Issue Date, including, without limitation, the Indenture, the Notes, the Subsidiary Guarantees, and the Senior Credit Agreement (and related documentation);
(2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to any agreement or instrument that is in existence at the time such Person becomes a Restricted Subsidiary (and not Incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary); provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and that, in the case of Indebtedness, was permitted to be Incurred pursuant to this Supplemental Indenture, the Notes, the Notes Collateral Documents, any Intercreditor Agreement and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable lawany agreement or instrument governing any Acquired Indebtedness or other agreement or instrument of any Person or related to property, rule, regulation assets or order Capital Stock of a Person acquired by or requirement, including merged into or consolidated with the Company or any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status ; provided, that such encumbrance or restriction (i) was not entered into in contemplation of the acquisition, merger or consolidation transaction, and (ii) shall not extend to any assets or property of the status Company or any other Restricted Subsidiary other than the assets and property so acquired and that, in the case of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance SubsidiaryIndebtedness, was permitted to be Incurred pursuant to the Indenture;
(4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or instrument refinancing of Indebtedness Incurred pursuant to an agreement referred to in any of clauses (1), (2) or (3) of this Section 4.6(b) or this Section 4.6(b)(4) or contained in any amendment, restatement, modification, renewal, restructuring, supplement, extension, substitution, refunding, replacement or refinancing of an agreement referred to in any of such clauses; provided, however, that, in the good faith reasonable determination of the Company, the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect, taken as a Person whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (1), (2) or relating to any Capital Stock (3) of this Section 4.6(b) on the Issue Date or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was mergedmerged into a Restricted Subsidiary, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person whichever is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Companyapplicable;
(5) in the case of Section 4.6(a)(3), any encumbrance or restriction: :
(i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a leaselease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements related to leasehold interests in Oil and Gas Properties), license or similar contract or agreementcontract, or the assignment or transfer of any leaselease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements related to leasehold interests in Oil and Gas Properties), license or other contract or agreement; contract;
(ii) contained in mortgages, pledges, charges pledges or other security agreements permitted under this the Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements; ;
(iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary; or
(iv) contained in any agreement creating Hedging Obligations permitted from time to time under the Indenture;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations (i) purchase money obligations for property acquired in the ordinary course of business and (ii) Capitalized Lease Obligations permitted under this Supplemental Indenture, in each case, that impose encumbrances or restrictions pursuant to Section 4.6(a)(3) on the subject propertyproperty so acquired;
(7) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or other disposition to a Person of all or substantially all the Capital Stock Stock, property or assets of the Company or any such Restricted Subsidiary (or the property or assets that are subject to such encumbrance or restriction) pending the closing of such sale or disposition;
(8) any customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(9) deposit arrangements or net worth provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents leases and other similar agreements and instrumentsentered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(910) in the case of Section 4.6(a)(3), any encumbrance or restriction that is a Lien otherwise permitted to be Incurred pursuant to Section 4.4;
(11) [reserved]; and
(12) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Issuer or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company Issuer or any Restricted Subsidiary;
(2) make any loans or advances to the Company Issuer or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company Issuer or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Company Issuer or any Restricted Subsidiary Subsidiary, or any prohibition on securing such loans or advances made to the Issuer or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a4.07(a) shall will not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument instrument, in each case, in effect at or entered into on or prior to the Issue Date, 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 materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue Date (as determined in good faith by the Issuer);
(2) any encumbrance [Reserved];
(3) encumbrances or restriction pursuant to restrictions existing under or by reason of this Indenture, the Notes, the Senior Guaranteed Notes, the Senior Guaranteed Notes Collateral DocumentsIndenture, any Intercreditor Agreement the Existing Notes, the Existing Notes Indentures, the Senior Secured Facilities, the guarantees thereof, and the Note Guarantees;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance SubsidiarySenior Secured Facilities Security Documents;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which which
(i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Company Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which (ii) such agreement or instrument is assumed by the Company Issuer or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each case, other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company Issuer or was merged, consolidated or otherwise combined with or into the Company Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionSubsidiary) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, or any Subsidiary thereof or thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than in comparable financings (as determined in good faith by the Company) and where either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise refinancesextends, renews, refunds, refinances or replaces an agreement or instrument referred to in clauses (1), (3), (4) to or (165) of this Section 3.4(b) or this clause (164.07(b) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1), (3), (4) to or (165) of this Section 3.4(b) or this clause (174.07(b); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the CompanyIssuer);
(6) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Issuer or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements;
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(D) pursuant to the terms of any license, authorization, concession or permit;
(7) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(8) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchange;
(11) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(12) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(13) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.04 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than (i) the encumbrances and restrictions contained in the Senior Secured Facilities on the Issue Date, together with the security documents associated therewith, if any, as in effect on or immediately prior to the Completion Date or (ii) is customary in comparable financings (as determined in good faith by the Issuer) and where, in the case of clause (ii), the Issuer determines at the time of issuance of such Indebtedness that such encumbrances or restrictions (x) will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes as and when they become due or (y) such encumbrances and restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness;
(14) any encumbrance or restrictions arising in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing that, in the good faith determination of an Officer or the Board of Directors of the Issuer, are necessary or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06.
Appears in 1 contract
Sources: Indenture (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
Company, (2ii) make any loans or advances to the Company or any Restricted Subsidiary; or
(3iii) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary; (provided that (x) the dividend or liquidation priority between classes of Capital Stock, or subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall obligation, will not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness), including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 3.4(a) shall not prohibitexcept any encumbrance or restriction:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other an agreement or instrument in effect at or entered into on or prior to the Issue Date, any Credit Facility, this Indenture, the Permanent Notes Indenture, the Notes or the Permanent Notes;
(2) any encumbrance or restriction pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this Indentureclause (2), if a Person other than the Notes, Company is the Notes Collateral DocumentsSuccessor Company with respect thereto, any Intercreditor Agreement and Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the Note Guaranteescase may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) any encumbrance or restriction pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order order, or requirementrequired by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary or Home Warranty Subsidiary;; or
(47) any encumbrance or restriction pursuant to an agreement or instrument of a Person or (A) relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (iii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the subject property;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Securitization Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 3.2 407 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and where either (Ax) the Company determines at the time of entry into such agreement or instrument in good faith that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the Company’s ability to make principal or interest payments on the Notes or (By) such encumbrance or restriction applies only during the continuance if a default occurs in respect of a default payment or financial covenant relating to such agreement Indebtedness, (B) relating to any sale of receivables by or instrument;
Indebtedness of a Foreign Subsidiary or (15C) any encumbrance relating to Indebtedness of or restriction existing a Financing Disposition by reason or to or in favor of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (16) of this Section 3.4(b) or this clause (17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company)Special Purpose Entity.
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Sources: Indenture (Servicemaster Co)