Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will not, and will not permit any of its Restricted 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 Borrower or any Restricted Subsidiary; (2) make any loans or advances to the Borrower or any Restricted Subsidiary; or (3) sell, lease or transfer any of its property or assets to the 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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. (b) Section 4.07(a) will not prohibit: (1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower); (2) [Reserved]; (3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing; (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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company; (5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower); (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 Borrower will BZ Holdings shall not, and will shall not permit any of its Restricted Subsidiaries (other than the Issuers) 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:
to (1a) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Borrower BZ Holdings or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower BZ Holdings or any Restricted Subsidiary;
, (2b) make any loans or advances to the Borrower BZ Holdings or any Restricted Subsidiary; or
Subsidiary or (3c) sell, lease or transfer any of its property or assets to the Borrower BZ 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction arising pursuant to the terms of this Indenture or the Notes, as the same may be amended or modified;
(2) any Credit Facility encumbrance or any other restriction pursuant to an agreement or instrument, in each case, in effect at or entered into on the Effective Issue Date (including the Credit Agreement);
(3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred or Capital Stock issued by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by BZ Holdings or any Restricted Subsidiary (other than Indebtedness Incurred or Capital Stock issued as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by BZ Holdings or any Restricted Subsidiary) and outstanding on such date;
(4) any encumbrance or restriction arising by reason of applicable law, rule, regulation or order;
(5) restrictions on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into in the ordinary course of business, including such restrictions imposed by customers or insurance, surety or bonding companies;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(7) any encumbrance or restriction consisting of customary nonassignment provisions in leases or licenses to the extent such provisions impose restrictions of the type described in clause (c) above on the property leased or licensed thereunder;
(8) any encumbrance or restriction contained in security agreements or mortgages (or any related credit agreements, indentures, notes, note purchase agreements or similar agreements) securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages;
(9) customary restrictions under Purchase Money Indebtedness Incurred in compliance with Section 4.03;
(10) customary provisions in joint venture agreements and other similar agreements that restrict the transfer of ownership interests in such joint venture or similar Person;
(11) any encumbrance or restriction contained in contracts entered into in the ordinary course of business, not relating to Indebtedness and that do not, individually or in the aggregate, detract from the value of the assets of BZ Holdings or any of its Restricted Subsidiaries in any material respect;
(12) any encumbrance or restriction contained in any Indebtedness Incurred by a Foreign Subsidiary in compliance with this Indenture that applies only to such Foreign Subsidiary; and
(13) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of such agreementsthe contracts, instruments or obligations referred to in clauses (1) through (12) above or this clause (13); provided that the such amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are are, in the good faith judgment of an Officer, 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements dividend or other documents related restrictions prior to the foregoing;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Personsuch amendment, entered into on or before the date on which (i) such Person was acquired by or mergedmodification, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiaryrestatement, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each caserenewal, other than Capital Stock or Indebtedness Incurred as consideration inincrease, or to provide all or any portion of the funds utilized to consummatesupplement, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 4.06refinancing.
Appears in 3 contracts
Sources: Indenture (Bz Intermediate Holdings LLC), Indenture (Bz Intermediate Holdings LLC), Indenture (Boise Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer will not, and will not permit any of its Restricted Subsidiaries 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 the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) The provisions of Section 4.07(a4.8(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) 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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Issuer (ii) such agreement or instrument is assumed by the 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into in contemplation of the Borrower or any Restricted Subsidiarytransaction) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any encumbrance or restriction with respect to a Restricted Subsidiary 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (i) or Section 4.07(b)(4(ii) of this paragraph or this Section 4.07(b)(5) clause (an “Initial Agreement”iii) or contained in any amendment, supplement or other modification amendment to an agreement relating to any Indebtedness referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (i) or Section 4.07(b)(4(ii) of this paragraph or this Section 4.07(b)(5clause (iii); provided, however, that the encumbrances and any such restrictions with respect to such Restricted Subsidiary contained in any such amendments or any agreement effecting refunding, replacement or instrument refinancing referred to above, are no less favorable in any material respect to the Lenders taken as a whole more restrictive than the encumbrances and restrictions contained in the Initial Agreement agreements relating to the Indebtedness referred to in clauses (i) or Initial Agreements to which (ii) of this paragraph in existence on the Issue Date or the date such refinancing or amendmentRestricted Subsidiary became a Restricted Subsidiary, supplement or other modification relates (as determined in good faith by the Borrower)whichever is applicable;
(6iv) 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 the assignment or transfer of any such lease, license or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Agreement or Indenture securing Indebtedness of the Borrower Issuer 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 Borrower Issuer or any Restricted Subsidiary; or
(d) pursuant to the terms of any license, authorization, concession or permit;
(7a) 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 AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in Section 4.8(a)(3) 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 ventureacquired;
(8) 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;; and
(9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license regulation 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 including applicable corporate law 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 payment 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 4.06dividends.
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 Borrower will BZ Holdings shall not, and will shall not permit any of its Restricted Subsidiaries (other than the Issuers) 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:
to (1a) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Borrower BZ Holdings or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower BZ Holdings or any Restricted Subsidiary;
, (2b) make any loans or advances to the Borrower BZ Holdings or any Restricted Subsidiary; or
Subsidiary or (3c) sell, lease or transfer any of its property or assets to the Borrower BZ 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction arising pursuant to the terms of this Indenture or the Notes, as the same may be amended or modified;
(2) any Credit Facility encumbrance or any other restriction pursuant to an agreement or instrument, in each case, in effect at or entered into on the Effective Issue Date (including the Credit Agreements);
(3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred or Capital Stock issued by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by BZ Holdings or any Restricted Subsidiary (other than Indebtedness Incurred or Capital Stock issued as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by BZ Holdings or any Restricted Subsidiary) and outstanding on such date;
(4) any encumbrance or restriction arising by reason of applicable law, rule, regulation or order;
(5) restrictions on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into in the ordinary course of business, including such restrictions imposed by customers or insurance, surety or bonding companies;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(7) any encumbrance or restriction consisting of customary nonassignment provisions in leases or licenses to the extent such provisions impose restrictions of the type described in clause (c) above on the property leased or licensed thereunder;
(8) any encumbrance or restriction contained in security agreements or mortgages (or any related credit agreements, indentures, notes, note purchase agreements or similar agreements) securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages;
(9) customary restrictions under Purchase Money Indebtedness Incurred in compliance with Section 4.03;
(10) customary provisions in joint venture agreements and other similar agreements that restrict the transfer of ownership interests in such joint venture or similar Person;
(11) any encumbrance or restriction contained in contracts entered into in the ordinary course of business, not relating to Indebtedness and that do not, individually or in the aggregate, detract from the value of the assets of BZ Holdings or any of its Restricted Subsidiaries in any material respect;
(12) any encumbrance or restriction contained in any Indebtedness Incurred by a Foreign Subsidiary in compliance with this Indenture that applies only to such Foreign Subsidiary; and
(13) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of such agreementsthe contracts, instruments or obligations referred to in clauses (1) through (12) above or this clause (13); provided that the such amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are are, in the good faith judgment of an Officer, 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements dividend or other documents related restrictions prior to the foregoing;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Personsuch amendment, entered into on or before the date on which (i) such Person was acquired by or mergedmodification, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiaryrestatement, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each caserenewal, other than Capital Stock or Indebtedness Incurred as consideration inincrease, or to provide all or any portion of the funds utilized to consummatesupplement, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 4.06refinancing.
Appears in 3 contracts
Sources: Indenture (Bz Intermediate Holdings LLC), Indenture (Bz Intermediate Holdings LLC), Indenture (Boise Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (aA) The Borrower Issuer will not, and will not permit any of its Restricted Subsidiaries 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 Borrower Issuer or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Issuer; (2b) make any loans or advances to the Borrower Issuer; or any Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets to the Borrower or any Restricted SubsidiaryIssuer, provided that except:
(xi) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior with respect to dividends or liquidating distributions being paid on common stock and clauses (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiarya), 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.
(b) and (c) of the first sentence of this Section 4.07(a) will not prohibit:4.04(A),
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4a) any encumbrance or restriction pursuant to an agreement of the Issuer or instrument any of its Subsidiaries in effect at or entered into on the Issue Date;
(b) any encumbrance or restriction contained in the terms of any agreement pursuant to which Indebtedness was issued 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 covenant default contained in such Indebtedness or agreement or (ii) the Issuer determines at the time such Indebtedness is Incurred (and at the time of any modification of the terms of any such encumbrance or restriction) that any such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes and (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 Issuer in good faith);
(c) 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 prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Issuer (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryIssuer) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5d) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1clause (a), Section 4.07(b)(3(b) or (c) of this Section 4.07(b)(44.04(A)(i) or this clause (d) or contained in any amendment to an agreement referred to in clause (a), (b) or (c) of this Section 4.07(b)(54.04(A)(i) or this clause (d); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or instrument amendment are no not materially less favorable in any material respect to the Lenders favorable, taken as a whole whole, to the Noteholders than the encumbrances and restrictions with respect to such Restricted Subsidiary 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 Borrower)predecessor agreements;
(6e) any encumbrance or restriction:restriction pursuant to customary restrictions on, or customary conditions to the payment of dividends or other distributions on, equity interests owned by the Issuer or any Subsidiary in any joint venture or similar enterprise contained in the constitutive documents, including shareholders’ or similar agreements, of such joint venture or enterprise, to the extent encumbrances or restrictions apply solely to the income of such joint venture or similar enterprise;
(f) any encumbrance or restriction pursuant to customary restrictions contained in (i) agreements governing any Non-Recourse Indebtedness or Permitted Co-investments; or (ii) the terms of the relevant partnership agreement, limited liability company operating agreement or other governing document of the entity that is the borrower (or the direct parent of the borrower) under any Non-Recourse Indebtedness or of any Co-investment Vehicle;
(g) any encumbrance or restriction contained in the terms of any agreement governing Indebtedness directly or indirectly secured by real property or other related assets that are customary for real property financing transactions, such as cash collateral accounts or impounds or reserves required for payment of taxes, insurance, security deposits, capital expenditures and repairs, interest and tenant improvements and leasing commissions; and
(h) any encumbrance or restriction pursuant to applicable law; and
(ii) with respect to clause (c) of the first sentence of this Section 4.04(A) only,
(a) that restricts any such encumbrance or restriction consisting of customary non-assignment provisions in a customary manner leases governing leasehold interests or licenses of intellectual property to the subletting, assignment or extent such provisions restrict the transfer of any property or asset that is subject to a lease, license or similar contract, the lease or the assignment property leased or transfer of any lease, license or other contractlicensed thereunder;
(b) restrictions contained in mortgagessecurity agreements, pledges mortgages or other security agreements permitted under this Agreement or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement or any agreement governing Non-Recourse Indebtedness to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements, mortgages or Non-Recourse Indebtedness;
(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 assets subject to any Lien permitted under the assets Indenture imposed by the holder of the joint venturesuch Lien;
(8) d) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) 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 such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;; and
(9e) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into arising or agreed to 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 not relating to any Indebtedness permitted to be Incurred subsequent Indebtedness, and that do not, individually or in the aggregate, detract from the value of the property or assets of the Issuer or any Restricted Subsidiary in a manner material to the Effective Date pursuant to Section 4.04 if the encumbrances Issuer and restrictions contained in any such agreement or instrument its Restricted Subsidiaries, 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 4.06whole.
Appears in 3 contracts
Sources: Supplemental Indenture (Kennedy-Wilson Holdings, Inc.), Supplemental Indenture (Kennedy-Wilson Holdings, Inc.), Supplemental Indenture (Kennedy-Wilson Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower Company or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Company (2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock), (yb) 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 Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or (c) transfer any of its property or assets to the Company or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 clauses (a), (b) and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrowerc);,
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4A) any encumbrance or restriction pursuant to an agreement (including the Priority Lien Credit 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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryCompany) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5C) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1clause (A), Section 4.07(b)(3(B) or (I) of clause (1) of this Section 4.07(b)(44.05 or this clause (C) or contained in any amendment to an agreement referred to in clause (A), (B) or (I) of clause (1) of this Section 4.07(b)(54.05 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 not materially less favorable in any material respect to the Lenders favorable, taken as a whole whole, to the Securityholders 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 Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(E) any encumbrance or restriction on the disposition or distribution of assets or property, including cash or other deposits, under agreements entered into in the ordinary course of the Oil and Gas Business of the types described in clause (2) of the definition of Permitted Business Investments;
(F) encumbrances and restrictions contained in contracts entered into in the Initial Agreement ordinary course of business, not relating to any Indebtedness, and that do not, individually or Initial Agreements in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to which such refinancing realize the value of, property or amendment, supplement assets of the Company or other modification relates (as determined any Restricted Subsidiary in good faith by any manner material to the Borrower)Company or any Restricted Subsidiary;
(6G) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered in the ordinary course of business;
(H) restrictions on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into the ordinary course of business, including such restrictions imposed by customers or insurance, surety or bonding companies; and
(I) encumbrances or restrictions contained in agreements governing Indebtedness of the Company or any Restricted Subsidiary permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 4.03; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Company taken as a whole, as determined by the Board of Directors of the Company in good faith, than the provisions contained in the Priority Lien Credit Agreement or in this Indenture as in effect on the Issue Date.
(2) with respect to clause (c) only,
(A) any encumbrance or restriction:
(a) that restricts in a restriction consisting of customary manner the subletting, assignment nonassignment or transfer provisions in leases, licenses, similar agreements, operating agreements or other agreements customary in the Oil and Gas Business to the extent such provisions restrict the transfer of any property or asset that is subject to a the lease, license or similar contract, agreement or the assignment or transfer of any lease, license or other contractproperty subject thereto;
(bB) any encumbrance or restriction contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property or assets subject to such security agreements or mortgages, pledges or other security agreements;
(cC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary; orand
(dD) 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 provisions with respect to a Restricted Subsidiary (the disposition or any distribution of its assets or property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition 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, licensesoperating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other similar agreements that are customary in the Oil and instruments Gas Business and 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: Indenture (Petroquest Energy Inc), Indenture (PetroQuest Energy, L.L.C.), Indenture (Petroquest Energy Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company (it being understood that the priority of any Preferred Stock in receiving dividend or any Restricted Subsidiaryliquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Borrower Company (it being understood that the subordination of loans or advances made to the Company to other Indebtedness Incurred by any Restricted SubsidiarySubsidiary 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 Borrower or any Restricted Subsidiary, provided Company (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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, transfers shall not be deemed to constitute such an encumbrance include any type of transfer described in clause (1) or restriction.
(b2) Section 4.07(a) will not prohibitabove), except:
(1A) any encumbrance or restriction pursuant to any (i) applicable law, rule, regulation or order or (ii) an agreement, including without limitation the Existing Credit Facility or any other agreement or instrument, in each caseAgreement, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower)Issue Date;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 on or before Incurred by such Restricted Subsidiary prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower 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, 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryCompany) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5C) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (A) or (B) of this Section 4.07(b)(44.08 or this clause (C) or contained in any amendment to an agreement referred to in clause (A) or (B) of this Section 4.07(b)(54.08 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 are no less favorable in any material respect to the Lenders amendment, taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendmentwhole, supplement or other modification relates are not materially less favorable (as determined in good faith by the Borrower)Company) to the Holders than the encumbrances and restrictions contained in such predecessor agreements;
(6D) in the case of clause (3), any encumbrance or restriction:
(ai) 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;
(bii) contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property or assets subject to such security agreements or 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
(diii) pursuant arising or agreed 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, not relating to any Indebtedness, and that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
(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;
(11E) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or lessors or required by insurance, surety or bonding companies, in each case under contracts entered into in the ordinary course of business;
(F) with respect to a Restricted Subsidiary, any encumbrance or restriction 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;
(G) provisions limiting the disposition or distribution of assets or property or assignment in joint venture agreements, asset sale agreements, leases, intellectual property licenses, sale-leaseback agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;
(12H) any encumbrance or restriction existing under, by reason of or with respect to Indebtedness Incurred by any Restricted Subsidiary permitted to be Incurred under Section 4.09, provided that the Board of Directors (as evidenced by a Board Resolution) determines in good faith at the time such Indebtedness is Incurred that such encumbrance or restriction would not impair the ability of the Company to make payments of interest and principal on the Notes when due;
(I) existing under, by reason of or with respect to Indebtedness Incurred by Foreign Subsidiaries permitted to be Incurred under Section 4.09;
(J) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements any document or Commodity Hedging Agreementsinstrument governing Indebtedness incurred pursuant to Section 4.09(b)(8); provided that any such restriction contained therein relates only to the asset or assets constructed or acquired in connection therewith;
(13K) any encumbrance Permitted Lien or restriction arising pursuant to an agreement any document or instrument relating to governing any Indebtedness permitted to be Incurred subsequent Permitted Lien; provided that any such restriction contained therein relates only to the Effective Date pursuant to Section 4.04 if the encumbrances and restrictions contained in any such agreement asset 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 assets subject to such IndebtednessPermitted Lien;
(14L) 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 contractual obligation that is reasonably determined by the Company not to materially adversely affect the ability of the Company to perform its obligations under Section 4.06this Indenture, the Notes, or the Exchange Notes; or
(M) existing by reason of this Indenture, the Notes, the Exchange Notes or the Note Guarantees.
Appears in 3 contracts
Sources: Indenture (Qorvo, Inc.), Indenture (Qorvo, Inc.), Indenture (Qorvo, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries 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) (i) pay dividends or make any other distributions in cash to the Company or otherwise any of the Restricted Subsidiaries on its Capital Stock or with respect to the Borrower any other interest or any Restricted Subsidiary participation in, or measured by, its profits or (ii) pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Company, (2b) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property properties or assets to the Borrower or any Restricted SubsidiaryCompany, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 clauses (a), (b) and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrowerc);,
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryCompany) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5C) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, to an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(34.05(1)(A) or Section 4.07(b)(4(B) or this Section 4.07(b)(5) clause (an “Initial Agreement”C) or contained in any amendment, supplement modification, restatement, renewal, refunding, replacement or other modification Refinancing to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(34.05(1)(A) or Section 4.07(b)(4(B) or this Section 4.07(b)(5clause (C); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or instrument are no amendment are, as determined by an Officer in good faith, not materially less favorable in any material respect to the Lenders taken as a whole Holders than the encumbrances and restrictions with respect to such Restricted Subsidiary 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 Borrower);predecessor agreements; and
(6D) 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 Equity Interests or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(9E) customary provisions in leases, licenses, joint venture agreements agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, limited liability company organizational documents and other similar agreements and instruments agreements;
(F) restrictions on cash, Cash Equivalents, marketable securities, investment grade securities or other deposits or net worth imposed by customers or lessors (including governmental entities) under contracts or leases entered into in the ordinary course of business;
(10G) encumbrances or restrictions arising or existing by reason of applicable law or this Indenture, the Securities, any applicable ruleExchange Notes, regulation, governmental license or order, or required by any regulatory authority or stock exchangethe Subsidiary Guarantees and the Security Documents;
(11H) applicable laws, rules, regulations and orders;
(I) customary restrictions in Credit Facility Indebtedness Incurred pursuant to Section 4.03(b)(1); provided, however, that such restrictions are not more restrictive than those contained in this Indenture or the Security Documents; and
(2) with respect to clause (c) only,
(A) any encumbrance or restriction on cash consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessproperty leased thereunder;
(12B) any encumbrance or restriction pursuant contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(13) any the extent such encumbrance or restriction arising pursuant restricts the transfer of the property subject to an agreement such security agreements or instrument relating mortgages; and
(C) agreements with respect to any Purchase Money Indebtedness permitted to be Incurred subsequent to the Effective Date pursuant to Section 4.04 if the encumbrances and Capital Lease Obligations that impose 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, property purchased 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 4.06leased.
Appears in 2 contracts
Sources: Indenture (Rotech Healthcare Inc), Indenture (Rotech Healthcare Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary that is not a Subsidiary Guarantor to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary that is not a Subsidiary Guarantor 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 to the Borrower or any Restricted Subsidiary Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Borrower Company or any other Restricted Subsidiary;
(2b) make any loans or advances to the Borrower or any Restricted SubsidiaryCompany; or
(3c) sell, lease or transfer any of its property or assets Property to the Borrower Company. The foregoing limitations will not apply:
(i) to restrictions or encumbrances existing under or by reason of:
(A) agreements in effect on the Issue Date (including, without limitation, restrictions pursuant to the Notes, this Indenture, the Subsidiary Guaranties, the Senior Secured Credit Facilities and the Existing Notes), and any amendments, modifications, restatements, renewals, replacements, refundings, refinancings, increases or supplements of those agreements, provided, that the encumbrances or restrictions contained in any such amendments, modifications, restatements, renewals, replacements, refundings, refinancings, increases or supplements (1) taken as a whole, are not materially more restrictive than the encumbrances or restrictions contained in agreements to which they relate as in place on the Issue Date, (2) are not materially more disadvantageous, taken as a whole, with respect to the Company or any Restricted Subsidiary than is customary at the time and under the circumstances for financings of similarly situated borrowers or issuers or available to the Company and its Subsidiaries (as determined by the Company in good faith), or (3) will not materially impair the Issuer’s ability to make anticipated principal or interest payments on the Notes when due or the Company’s ability to satisfy its obligations under the Parent Guaranty, each as determined in good faith by the Company,
(B) (1) in the case of the designation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, amalgamation or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of all or substantially all of the assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, any agreement or other instrument of such Unrestricted Subsidiary (but, in any such case, not created in contemplation thereof) and (2) any agreement or other instrument of a Restricted Subsidiary existing at the time it became a Restricted Subsidiary or at the time it merges with or into the Company or a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company, and, in each case, any amendments, modifications, restatements, renewals, replacements, refundings, refinancings, increases or supplements of those agreements and instruments; provided, that the encumbrances or restrictions contained in any such amendments, modifications, restatements, renewals, replacements, refundings, refinancings, increases or supplements, (1) taken as a whole, are not materially more restrictive than the encumbrances or restrictions contained in such agreements and instruments in effect on the date of designation or acquisition, (2) are not materially more disadvantageous, taken as a whole, with respect to the Company or any Restricted Subsidiary than is customary at the time and under the circumstances for financings of similarly situated borrowers or issuers or available to the Company and its Subsidiaries (as determined by the Company in good faith), or (3) will not materially impair the Issuer’s ability to make anticipated principal or interest payments on the Notes when due or the Company’s ability to satisfy its obligations under the Parent Guaranty, each as determined in good faith by the Company,
(C) any Credit Facility of the Company or any Restricted Subsidiary permitted to be Incurred under this Indenture; provided, that the applicable encumbrances and restrictions contained in the agreement or agreements governing such Credit Facility (1) are not materially more restrictive, taken as a whole, than those contained in the Senior Secured Credit Facilities (with respect to other credit agreements or other secured Debt) or this Indenture (with respect to other indentures or other unsecured Debt), in each case as in effect on the Issue Date, (2) are not materially more disadvantageous, taken as a whole, with respect to the Company or any Restricted Subsidiary than is customary at the time and under the circumstances for financings of similarly situated borrowers or issuers or available to the Company and its Subsidiaries (as determined by the Company in good faith), or (3) will not materially impair the Issuer’s ability to make anticipated principal or interest payments on the Notes when due or the Company’s ability to satisfy its obligations under the Parent Guaranty, each as determined in good faith by the Company,
(D) the Refinancing of Debt Incurred pursuant to an agreement referred to in clause (i)(A), (B) or (C) above or in clause (ii)(A) or (B) below, provided such restrictions (1) are not materially less favorable, taken as a whole to the Holders than those under the agreement evidencing the Debt so Refinanced, (2) are not materially more disadvantageous, taken as a whole, with respect to the Company or any Restricted Subsidiary than is customary at the time and under the circumstances for financings of similarly situated borrowers or issuers or available to the Company and its Subsidiaries (as determined by the Company in good faith), or (3) will not materially impair the Issuer’s ability to make anticipated principal or interest payments on the Notes when due or the Company’s ability to satisfy its obligations under the Parent Guaranty, each as determined in good faith by the Company,
(E) any applicable law, rule, regulation or order;
(F) any agreement governing treasury services, cash pooling, Cash Management Services, Debt, Disqualified Stock or Preferred Stock entered into after the Issue Date that either contains encumbrances and restrictions that (i) are, in the good faith judgment of the Company, not materially more restrictive, taken as a whole, with respect to the Company or any Restricted Subsidiary than those in effect on the Issue Date pursuant to agreements in effect on the Issue Date, (ii) are not materially more disadvantageous, taken as a whole, with respect to the Company or any Restricted Subsidiary than is customary at the time and under the circumstances for financings of similarly situated borrowers or issuers or available to the Company and its Subsidiaries (as determined by the Company in good faith), or (3) will not materially impair the Issuer’s ability to make anticipated principal or interest payments on the Notes when due or the Company’s ability to satisfy its obligations under the Parent Guaranty, each as determined in good faith by the Company,
(G) Liens securing obligations otherwise permitted to be incurred under Section 4.11 that limit the right of the debtor to dispose of the assets subject to such Liens;
(H) provisions in joint venture agreements, shareholders’ agreements, asset sale agreements, Sale and Leaseback Transactions, stock sale agreements, joint development agreements and other similar agreements, which limitation or prohibition is applicable only to the assets or (in the case of joint venture agreements, shareholders’ agreements and other similar agreements) entity that are the subject of such agreements;
(I) restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(J) arising under Debt or other contractual requirements of a Securitization Entity in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Securitization Entity; or
(K) any restrictions on transfer of the equity interests in Novelis Korea Limited (“NKL”) or its direct parents, 4260848 Canada Inc. and 4260856 Canada Inc., imposed by any lock-up or listing agreement, rule or regulation in connection with any listing or offering of equity interests in NKL.
(ii) with respect to Section 4.13(c) only, to restrictions or encumbrances:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes or the applicable Guaranty pursuant to the provisions of Section 4.09 and Section 4.11 that limit the right of the debtor to dispose of the Property securing such Debt;
(B) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary, provided so long as such restrictions relate solely to the Property so acquired and were not created in connection with or in anticipation of such acquisition, and any amendments, modifications, restatements, renewals, replacements, refundings, refinancings, increases or supplements of the agreements that encumber such Property; provided, that the encumbrances or restrictions contained in any such amendments, modifications, restatements, renewals, replacements, refundings, refinancings, increases or supplements (x1) are not materially less favorable, taken as a whole, to the Holders than those under the agreement that encumbered such Property, (2) are not materially more disadvantageous, taken as a whole, with respect to the Company or any Restricted Subsidiary than is customary at the time and under the circumstances for financings of similarly situated borrowers or issuers or available to the Company and its Subsidiaries (as determined by the Company in good faith), or (3) will not materially impair the Issuer’s ability to make anticipated principal or interest payments on the Notes when due or the Company’s ability to satisfy its obligations under the Parent Guaranty, each as determined in good faith by the Company,
(C) resulting from provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder;
(D) restrictions contained in any asset purchase, stock purchase, merger or other similar agreement, pending the closing of the transaction contemplated thereby;
(E) restrictions contained in joint venture agreements, joint development agreements and shareholders’ agreements entered into in good faith;
(F) arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of Property of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof; or
(G) Standard Receivables Undertakings of the Company or a Restricted Subsidiary in connection with a Qualified Receivables Transaction relating to accounts receivable which are the subject of such Qualified Receivables Transaction and related assets of the type specified in the definition of Qualified Receivables Transaction. For purposes of determining compliance with this covenant, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock equity shall not be deemed a restriction on the ability to make distributions on Capital Stock and (y2) the subordination of (including the application of any standstill requirements to) loans or and advances made to the Borrower Company or any a Restricted Subsidiary to other Indebtedness Incurred Debt incurred by the Borrower Company or any such Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or a restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 loans 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 4.06advances.
Appears in 2 contracts
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company and Parent shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower Parent or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Parent or any a Restricted Subsidiary;
, (2b) make any loans or advances to the Borrower Parent or any a Restricted Subsidiary; or
Subsidiary or (3c) sell, lease or transfer any of its property or assets to the Borrower Parent or any a 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) with respect to clauses (a), (b) and (c):
(A) any encumbrance or restriction pursuant to (i) the Credit Agreement as entered into on the Issue Date and (ii) any Credit Facility or any agreement (other agreement or instrument, in each case, than (x) agreements relating to Indebtedness and (y) charter provisions and other agreements relating to Capital Stock) in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower)Issue Date;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower Parent 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryParent) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5C) any encumbrance or restriction pursuant to an agreement or instrument effecting a refundingan amendment, modification, restatement, renewal, increase, supplement, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(34.06(1)(A) or Section 4.07(b)(44.06(1)(B) or this Section 4.07(b)(5) clause (an “Initial Agreement”1)(C) or contained in any amendment, supplement or other modification amendment to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(34.06(1)(A) or Section 4.07(b)(44.06(1)(B) or this Section 4.07(b)(5clause (1)(C); providedPROVIDED, howeverHOWEVER, 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 Lenders 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 amendment, supplement or other modification relates (as determined in good faith by the Borrower);
(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 predecessor agreements;
(cD) 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 cash 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) other deposits 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 by customers under contracts entered into in the ordinary course of business;
(10E) encumbrances restrictions in Management Agreements that require the payment of management fees to Parent or restrictions arising one of its Qualified Restricted Subsidiaries prior to payment of dividends or existing by reason of applicable law or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchangedistributions;
(11F) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale of such Restricted Subsidiary (whether by stock sale, asset sale, merger, consolidation or otherwise) pending the closing of such sale or disposition; and 57
(G) any Permitted Payment Restriction;
(2) with respect to clause (c) only:
(A) any such encumbrance or restriction consisting of customary nonassignment provisions in leases and licenses; and
(B) restrictions contained in security agreements, mortgages and other similar agreements securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such agreements; and
(3) with respect to clauses (b) and (c) only, any encumbrance or restriction on cash with respect to a Qualified Restricted Subsidiary with respect to any agreement or other deposits charter provision evidencing Indebtedness or net worth imposed by customers Capital Stock otherwise permitted under agreements entered into in this Indenture; PROVIDED, HOWEVER, that the ordinary course of business;
(12) any provisions relating to such encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(13) any encumbrance or restriction arising pursuant to an contained in such agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent charter provision are not less favorable to the Effective Date pursuant to Section 4.04 if Holders than the encumbrances and restrictions contained described 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 (iiSection 4.06(1)(A), 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 2 contracts
Sources: Indenture (Medical Documenting Systems Inc), Indenture (United Surgical Partners International Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective effective, or enter into any agreement with any Person that would cause to become effective, any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in cash or otherwise on respect of its Capital Stock to the Borrower or any Restricted Subsidiary Stock, or pay any Indebtedness or other obligations owed obligation owed, to the Borrower Issuer or any other Restricted Subsidiary;,
(2b) make any loans or advances to the Borrower Issuer or any other Restricted Subsidiary; Subsidiary or
(3c) sell, lease or transfer any of its property or assets Property to the Borrower Issuer or any other Restricted Subsidiary, provided that except such limitation will not apply (x1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior with respect to dividends or liquidating distributions being paid on common stock and clauses (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiarya), 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.
(b) Section 4.07(aand (c), to encumbrances and restrictions (i) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing existence under or by reason of any agreements (inot otherwise described in clause (iii)) any Loan Documentsin effect on the Issue Date, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) and existing at such Person Restricted Subsidiary at the time it became a Restricted Subsidiary (if such encumbrance or restriction was not created in each case, other than Capital Stock connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or was mergedIssuer, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any encumbrance or restriction pursuant to an (x) the Credit Facility as in effect on the Issue Date and (y) any agreement or instrument effecting a refundingwhich amends, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refundsrefinances, refinances replaces or replacesrefunds the Credit Facility, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5); provided, however, that in the case of this subclause (y), such restrictions or 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 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 Borrower);
(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 holders of the Borrower Notes than those restrictions 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 Credit Facility as in effect on the Issue Date except that provisions in the Credit Facility permitting excess cash flow to be used for up to $15 million in restricted payments or investments may be deleted; provided, further, however, that in the case of any licensesubclauses (x) and (y), authorizationthe provisions of the Credit Facility (A) permit (whether explicitly or as a result of the relative maturities of the Credit Facility and the Notes) distributions to the Issuer for the purpose of, concession and in an amount sufficient to fund the payment of principal due at stated maturity and interest in respect of the Notes (provided, in either case, that such payment is due or permit;
to become due within 30 days from the date of such distribution) at a time when there does not exist an event which after notice or passage of time or both would permit the lenders under the Credit Facility to declare all amounts thereunder due and payable, and (7B) provide that in no event shall 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 the Credit Facility prohibit distributions for Indebtedness on the property so acquired Notes for more than 180 days in any consecutive 360 day period, unless (1) there exists a default under the Credit Facility resulting from any payment default under the Credit Facility when due or any (2) the maturity of the Credit Facility has been accelerated, or (iv) which result from the extension, renewal, refinancing, replacement, refunding or amendment of an agreement referred to in the immediately preceding clauses (1)(i) and (ii) above and clauses (2)(i) and (ii) below, provided, such encumbrance or restriction pursuant is no more restrictive 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 is not materially less favorable to the Lenders holders of Notes than those under or pursuant to the agreement evidencing the Indebtedness so extended, renewed, refinanced, replaced, refunded or amended, and (2) with respect to clause (c) only, to (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 relating to Indebtedness that is permitted to be Incurred and secured pursuant to Sections 4.11 and 4.16 that limits the right of the debtor to dispose of the assets or Property securing such Indebtedness, (ii) any Lien permitted under Section 4.06encumbrance or restriction in connection with an acquisition of Property, so long as such encumbrance or restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such acquisition, (iii) customary provisions restricting subletting or assignment of leases of the Issuer or any Restricted Subsidiary and customary provisions in other agreements that restrict assignment of such agreements or rights thereunder or (iv) customary restrictions contained in asset sale agreements limiting the transfer of such assets pending the closing of such sales.
Appears in 2 contracts
Sources: Indenture (Gci Inc), Indenture (General Communication Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1i) pay dividends dividends, in cash or otherwise, or make any other distributions in cash or otherwise on its Capital Stock to the Borrower or any Restricted Subsidiary or pay any Indebtedness Debt or other obligations obligation owed to the Borrower Company or any other Restricted SubsidiarySubsidiary of the Company;
(2ii) make any loans or advances to the Borrower Company or any other Restricted SubsidiarySubsidiary of the Company; or
(3iii) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower or any other Restricted Subsidiary to other Indebtedness Incurred by of the Borrower or any Restricted 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 restrictionCompany.
(b) Section 4.07(a) will The foregoing limitations shall not prohibitapply to:
(1i) any encumbrance or restriction pursuant to any Credit Facility or any other an agreement or instrument, in each case, in effect at or entered into on the Effective Issue Date (including, without limitation, under the Senior Secured Credit Agreements, related Hedging Obligations and Cash Management Services), and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of such agreementsthereof; provided that the such amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are not materially more restrictiveless favorable, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those such agreements as in effect on the Effective Date (Issue Date, as determined in good faith by the Borrower)senior management or Board of Directors of the Company;
(2ii) [Reserved];
(3) encumbrances any encumbrance or restrictions restriction existing under or by reason of Debt Incurred pursuant to Sections 4.08 and 4.10 provided that (ix) any Loan Documents, either (iiA) the New Senior Guaranteed Notes Indenture encumbrance or restriction applies only in the event of and during the New Senior Guaranteed Notes, continuance of a payment default or a default with respect to a financial covenant contained in such Debt or agreement or (iiiB) the Existing Company determines at the time any such Debt is Incurred (or, in the case of any such Debt under a revolving Credit Facility, at the time such revolving Credit Facility is established), and at the time of any modification of the terms of any such encumbrance or restriction, that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes Indentures and any other Debt as they become due in the Existing Notes, ordinary course that is an obligation of the Company and (ivy) the Existing Cablevision Notes Indentures and encumbrance or restriction is not materially more disadvantageous to the Existing Cablevision NotesHolders than is customary in comparable financings or agreements (as determined by senior management or the Board of Directors of the Company in good faith at the time any such Debt is Incurred (or, in the case of any such Debt under a revolving Credit Facility, at the time such revolving Credit Facility is established), and (v) at the Intercreditor Agreement and time of any Additional Intercreditor Agreement, including in each case, modification of the terms of any related security documents, escrow arrangements such encumbrance or other documents related to the foregoingrestriction);
(4iii) any encumbrance or restriction with respect to a Restricted Subsidiary of 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 (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each caseor was acquired by the Company or any other Restricted Subsidiary of 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any other Restricted Subsidiary when such Person becomes of the Successor Company;
(5iv) any encumbrance or restriction with respect to a Restricted Subsidiary of the Company pursuant to an agreement evidencing Debt Incurred or instrument Preferred Stock issued without violation of this Indenture or effecting a refunding, replacement or refinancing of Indebtedness Debt Incurred or Preferred Stock issued pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(14.12(b)(i), Section 4.07(b)(3(ii) or Section 4.07(b)(4(iii) or this Section 4.07(b)(54.12(b)(iv) or contained in any amendment to an agreement referred to in Section 4.12(b)(i), (ii) or (iii) or this Section 4.12(b)(iv); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, refinancing agreement or instrument are no less favorable in any material respect to the Lenders amendment, taken as a whole than whole, are not materially less favorable to the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendmentHolders, supplement or other modification relates (as determined in good faith by the Borrower)senior management or Board of Directors of the Company, than those existing immediately prior to the entry into such agreement, refinancing agreement or amendment;
(6v) in the case of Section 4.12(a)(iii), any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contract, property or asset or the assignment or transfer of any such lease, license or other contract;
(bB) contained in mortgagesby virtue of any transfer of, pledges agreement to transfer, option or other security agreements permitted under this Agreement right with respect to, or securing Indebtedness Lien on, any property or assets of the Borrower Company or any of its Restricted Subsidiaries not otherwise prohibited by this Indenture;
(C) that is included in a Restricted Subsidiary permitted under this Agreement licensing agreement to the extent such restrictions limit the transfer of the property subject to such licensing agreement;
(D) arising or agreed to in the ordinary course of business and that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any of its Restricted Subsidiaries in any manner material to the Company or any such Restricted Subsidiary as determined in good faith by senior management or the Board of Directors of the Company; and
(E) 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 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;
(7vi) 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 (of the Company or any of its property properties or assets) assets imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (whether by stock sale, asset sale, merger, consolidation or the property or assets that are subject to such restrictionotherwise) pending the closing of such sale or disposition;
(9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rulelaw, regulation, governmental license regulation or order, or required by any regulatory authority or stock exchange;
(11viii) any encumbrance or restriction under Capitalized Lease Obligations and purchase money obligations for property leased or acquired in the ordinary course of business that impose encumbrances or restrictions of the nature described in Section 4.12(a)(iii) on the property so leased or acquired;
(ix) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to joint ventures;
(x) restrictions on cash or other deposits or net worth imposed by customers under agreements contracts entered into in the ordinary course of business;; and
(12xi) 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 created in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing Facility that, in the good faith determination of an Officer senior management or the Board of Directors of the BorrowerCompany, 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 4.06Facility.
Appears in 2 contracts
Sources: Indenture (JBS Holding Luxembourg S.A R.L.), Indenture (JBS Holding Luxembourg S.A R.L.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company may not, and will may not permit any of its Restricted Subsidiaries 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 the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the 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 Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(y2) 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 Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, shall Subsidiary being deemed not be deemed to constitute such an encumbrance or restriction.); or
(b3) Section 4.07(a) transfer any of its property or assets to the Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4a) 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 Secured Credit Agreement in effect on such 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 Incurred by a Person, entered into Restricted Subsidiary on or before the date on which (i) such Person the Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated in contemplation of the transaction or otherwise combined with or into the Borrower or any Restricted Subsidiarytransactions) and outstanding on such date; provided thatdate provided, for that any such encumbrance or restriction shall not extend to any assets or property of the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any other Restricted Subsidiary when such Person becomes other than the Successor Companyassets and property so acquired;
(5c) any encumbrance or restriction with respect to a Restricted Subsidiary 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1clause (a) or (b) of this paragraph or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c), Section 4.07(b)(3) including successive refundings, replacements or Section 4.07(b)(4) or this Section 4.07(b)(5)refinancings; 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 Lenders taken as a whole Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (a) or (b) of this paragraph on the Initial Agreement Issue Date or Initial Agreements to which the date such refinancing or amendmentRestricted Subsidiary became a Restricted Subsidiary, supplement or other modification relates (as determined in good faith by the Borrower)whichever is applicable;
(6d) in the case of clause (3) of the first paragraph of this Section 3.06, any encumbrance or restriction:
(ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(bii) contained in mortgages, pledges or other security agreements permitted under this Agreement or the Indenture securing Indebtedness of the Borrower 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
(ciii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary; or
(d) pursuant to the terms of any license, authorization, concession or permit;
(7e) 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 Agreementthe Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.06 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 ventureacquired;
(8) f) 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;
(9g) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(h) net worth provisions in leases, licenses, joint venture agreements leases and other similar agreements and instruments entered into by the Company or any Restricted Subsidiary in the ordinary course of business;; and
(10i) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license regulation 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 2 contracts
Sources: First Supplemental Indenture (Quicksilver Resources Inc), First Supplemental Indenture (Quicksilver Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries 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 to the Borrower or any Restricted Subsidiary Stock, or pay any Indebtedness or other obligations owed owed, to the Borrower or any Restricted Subsidiary;
Company, (2ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(3iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted SubsidiaryCompany, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other an agreement or instrument, in each case, in effect at or entered into on the Effective Date 1997 Notes Issue Date, including without limitation, each of the Credit Agreements 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 related collateral documents and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrower)guarantees;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction with respect to a Restricted Subsidiary (x) 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 (A) Incurred by such Restricted Subsidiary prior to the date on which (i) such Person Restricted Subsidiary was acquired by the Company or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (iiB) such agreement or instrument is of a Person assumed by the Borrower Company or any a Restricted Subsidiary in connection with an the acquisition of assets or (iii) from such Person became a Restricted Subsidiary provided that at the time such assets were owned by such other Person such Indebtedness was either secured by such assets or related to the acquisition, ownership, improvement or use of such assets (in each case, case 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, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was such assets were acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower or any a Restricted Subsidiary, as applicable) or (y) that is not pursuant to an agreement relating to Indebtedness, and outstanding on such date; provided that, for is in existence at the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when time that such Person becomes a Subsidiary of the Successor CompanyCompany and not incurred in connection with, or in contemplation of, such Person becoming such a Subsidiary;
(53) any encumbrance or restriction pursuant to an agreement or instrument effecting (a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or "Refinancing Agreement") that otherwise extends, renews, refunds, refinances or replaces, replaces an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (1) or (2) of this Section 4.07(b)(4) or this Section 4.07(b)(5clause (3) (an “"Initial Agreement”") or contained in any amendment, supplement or other modification amendment to an agreement referred to in Section 4.07(b)(1)Initial Agreement; PROVIDED, Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5); provided, howeverHOWEVER, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement Refinancing Agreement or instrument amendment are no not materially less favorable in any material respect to the Lenders taken as a whole Securityholders than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing Refinancing Agreement or amendment, supplement or other modification amendment relates (as determined in good faith by the BorrowerCompany);
(64) any encumbrance or restriction:
restriction (aA) that restricts in a customary manner (x) the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or (y) the assignment or transfer of any lease, license or other contract;
, or (bB) contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property or assets asset subject to such security agreements or mortgages, pledges or other security agreements;
(c5) any restriction with respect to a Restricted Subsidiary, or any property or assets of any 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, or the sale or disposition of the property or assets that are subject to such restriction, pending the closing of such sale or disposition;
(6) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower 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 Agreement, in each case, that impose encumbrances an agreement relating to any foreign Indebtedness incurred by any non-U.S. Restricted Subsidiary;
(8) any encumbrance or restrictions on restriction required by any regulatory authority having jurisdiction over the property so acquired Company or any Restricted Subsidiary or any of their businesses;
(9) any encumbrance or restriction pursuant to an agreement relating to Indebtedness of or a Financing Disposition to or by any Receivables Subsidiary or Equipment Subsidiary; and
(10) any encumbrance or restriction pursuant to a joint venture or similar 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 arrangement 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 4.06Fiskeby Transaction.
Appears in 2 contracts
Sources: Indenture (Riverwood Holding Inc), Indenture (Riverwood Holding Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries 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:
(1i) to 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 Borrower Company or any Restricted Subsidiary;,
(2ii) to make any loans or advances to the Borrower Company or any Restricted Subsidiary; or,
(3iii) sell, lease or to transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary, provided that or
(xiv) the priority to make payments in respect 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 Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any such encumbrance or restriction pursuant to any Credit Facility or any other to: (x) an agreement or instrument, in each case, in effect at or entered into on the Effective Date Issue Date, (y) the Credit Agreement and any amendments, restatements, modifications, renewals, supplements, refundings, replacements guarantees thereunder 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, (z) agreements governing Leasing Indebtedness only with respect to such dividend and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrower)a Leasing Subsidiary;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any such 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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryCompany) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(53) any such encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (1)(x) or (2) of this Section 4.07(b)(44.12 or contained in any amendment to an agreement referred to in clause (1)(x) or (2) of this Section 4.07(b)(5)4.12; 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 to the Holders of the Notes than any material such encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements;
(4) any such encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the Lenders taken as a whole than extent such provisions restrict the transfer of the lease or the property leased thereunder;
(5) in the case of clause (iii) above, 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 Borrower);
(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 mortgages securing Indebtedness of the Borrower 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 security agreements or 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;
(76) 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 such 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;
(117) any such 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) with respect to any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(13) any encumbrance or restriction arising Restricted Subsidiary that is a Foreign Subsidiary 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 (ii4.9(10), 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) 8) any encumbrance or restrictions arising customarily contained in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing that, agreements governing Joint Ventures permitted under this Indenture and which were agreed to 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 Financingfaith; orand
(159) any encumbrance or restriction existing restrictions imposed by reason of any Lien permitted under Section 4.06applicable law.
Appears in 2 contracts
Sources: Indenture (Trinity Marine Products, Inc.), Indenture (Trinity Industries Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Stage shall not, and will shall not permit any of its Restricted Subsidiaries 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 to the Borrower or any Restricted Subsidiary or pay any Indebtedness Debt or other obligations obligation owed to the Borrower Stage or any Restricted Subsidiary;,
(2ii) make any loans or advances to the Borrower Stage or any Restricted Subsidiary; Subsidiary or
(3iii) sell, lease or transfer any of its property or assets to the Borrower Stage 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1a) any encumbrance or restriction pursuant to any the New Credit Facility Agreement or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related pursuant to the foregoing;
issuance of the Notes; (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 Debt Incurred by such Restricted Subsidiary on or before prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Stage (ii) such agreement or instrument is assumed by the 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 Debt 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 Borrower or was mergedStage), consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5c) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Debt Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (a) or Section 4.07(b)(4(b) or this Section 4.07(b)(5contained in any amendment to an agreement referred to in clause (a) or (b); providedPROVIDED, howeverHOWEVER, that the encumbrances and restrictions contained in any such refinancing agreement or amendment are no less favorable to the Holders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements; (d) any such agreement or instrument are no less favorable in any material respect to the 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 Borrower);
(6) any encumbrance or restriction:
(a) that restricts restriction consisting of customary nonassignment provisions 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 leases governing leasehold interests to the extent such encumbrances provisions restrict the transfer of the lease or other customary non-assignment provisions in contracts (other than contracts that constitute Debt) entered into in the ordinary course of business to the extent such provisions restrict the transfer of the assets subject to such contracts; (e) in the case of clause (iii) above, restrictions contained in security agreements or mortgages securing Debt of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property or assets subject to such security agreements or mortgages, pledges or other security agreements;
; (cf) 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 imposed by operation of applicable law; (g) 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;
; and (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;
(11h) any encumbrance or restriction on cash or other deposits or net worth imposed by customers the sale of Receivables arising 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 such sales between Stage or a Qualified Receivables Financing that, in the good faith determination of Restricted Subsidiary and 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 4.06Accounts Receivable Subsidiary.
Appears in 2 contracts
Sources: Indenture (Stage Stores Inc), Indenture (Stage Stores Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will not, and will not permit any of its Restricted 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 Borrower or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective Closing 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 Effective Closing Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan DocumentsDocuments and the Loan Escrow Agreement, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Notes, the New Senior Guaranteed NotesNotes and the New Senior Guaranteed Notes Indenture, (iii) the Existing Senior Notes, Existing Senior Notes Indentures and Indentures, the Existing Target Notes, the Existing Target Notes Indenture, (iv) the Existing Cablevision New Senior Notes Indentures Escrow Agreements and the Existing Cablevision Notes, New Senior Guaranteed Notes Escrow Agreement and (v) the Intercreditor Agreement and any Additional Intercreditor Agreement, including in each case, any related security documents, escrow arrangements or other documents related to the foregoing;
(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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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, replaces an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 Closing 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, Closing 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 2 contracts
Sources: Credit Agreement (Altice USA, Inc.), Credit Agreement (CSC Holdings LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will shall not, and will shall not permit any of its Restricted 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:
of the Borrower (1a) to pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Borrower or any Restricted Subsidiary owned by, or pay any Indebtedness or other obligations owed to, the Borrower, (b) to the Borrower or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets to the Borrower or any Restricted SubsidiaryBorrower, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1i) any encumbrance or restriction pursuant to any the Existing Credit Facility Agreement or any other agreement or instrument, in each case, in effect at or entered into on the Effective Date date of this Agreement and any amendmentsextensions, restatementsrefinancings, modificationsrenewals or replacements of any such agreement; provided, renewalshowever, supplements, refundings, replacements or refinancings of such agreements; provided that the amendmentsencumbrances and restrictions in any such extension, restatementsrefinancing, modifications, renewals, supplements, refundings, replacements renewal or refinancings replacement are not materially more restrictive, taken as a whole, with no less favorable in any material respect to such dividend and other payment restrictions the Banks than those contained in those agreements on the Effective Date (as determined in good faith by the Borrower)encumbrances or restrictions being extended, refinanced, renewed or replaced;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction with respect to a Restricted Subsidiary of the Borrower 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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 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, or was acquired by by, the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryBorrower) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (ii) above or Section 4.07(b)(4contained in any amendment to an agreement referred to in clause (ii) or this Section 4.07(b)(5)above; 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 Lenders taken as a whole Banks than the encumbrances and restrictions with respect to such Restricted Subsidiary 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 Borrower)ii) above;
(6iv) any encumbrance or restriction:
(a) that restricts restriction consisting of customary nonassignment provisions 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 leases governing leasehold interests to the extent such encumbrances provisions restrict the transfer of the lease or the property leased thereunder;
(v) in the case of clause (c) above, restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary of the Borrower to the extent such restrictions restrict the transfer of the property or assets subject to such security agreements or 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;
(7vi) 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) the Borrower 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;
(9vii) 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 Indebtedness 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 agreement relating to any Indebtedness of clause (ii), the Borrower determines at or a Restricted Subsidiary of the time of issuance of such Indebtedness Borrower permitted pursuant to Section 7.01; provided, however, that such encumbrances or restrictions either (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 (yA) such encumbrances and restrictions apply only if are no more restrictive than the encumbrances and restrictions imposed by the Existing Credit Agreement or (B) each Restricted Subsidiary subject to any such encumbrances or restrictions after the Closing Date shall Guarantee the Loans on a default occurs in respect of a payment or financial covenant relating senior basis; pursuant to such Indebtedness;the Subsidiaries Guaranty; and
(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
(15viii) any encumbrance or restriction existing under or by reason of applicable law. Nothing contained in this Section 7.03 shall prevent the Borrower or any Lien permitted under Section 4.06Restricted Subsidiary of the Borrower from restricting the sale or other disposition of property or assets of the Borrower or any Restricted Subsidiary of the Borrower that secure Indebtedness of the Borrower or any of its Restricted Subsidiaries.
Appears in 2 contracts
Sources: Term Loan Agreement (Acg Holdings Inc), Term Loan Agreement (Sullivan Graphics Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary (other than a Subsidiary Guarantor) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than a Subsidiary Guarantor) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Borrower Company or any of its Restricted Subsidiaries, or pay any Indebtedness owed to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, 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 assets or property 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(2) above).
(b) Section 4.07(a4.08(a) will shall not prohibit:
(1) any encumbrance or restriction pursuant apply to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions of (i) the Company or any Loan Documentsof its Restricted Subsidiaries in effect on the Issue Date, (ii) including, without limitation, pursuant to the New Senior Guaranteed Notes Indenture and Credit Facility, the New Senior Guaranteed NotesEx-Im Credit Facility, (iii) the Existing Notes Indentures due 2025, the Existing Notes due 2027, related Hedging Obligations and Indebtedness permitted pursuant to clause (3) of Section 4.09(b);
(2) this Indenture, the Notes and the Existing NotesSubsidiary Guarantees;
(3) any agreement or other instrument of a Person acquired by or merged, amalgamated or consolidated with or into the Company or any Restricted Subsidiary or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, in each case that was in existence at the time of such acquisition (ivor at the time it merges, amalgamates or consolidates with or into the Company or any Restricted Subsidiary or is assumed in connection with the acquisition of assets or property from such Person) the Existing Cablevision Notes Indentures and the Existing Cablevision Notesor designation, and (v) the Intercreditor Agreement and any Additional Intercreditor Agreementbut, including in each case, not created in contemplation thereof, which encumbrance or restriction is not applicable to any related security documentsPerson, escrow arrangements or the assets or property of any Person, other documents related to than the foregoingPerson and its Subsidiaries, or the assets or property of the Person and its Subsidiaries, so acquired or designated (including after-acquired assets and property);
(4) any encumbrance in the case of clause (3) of Section 4.08(a), Permitted Liens or restriction pursuant Liens otherwise permitted to an agreement or instrument be Incurred under the provisions of a Person or relating Section 4.12 that limit the right of the debtor 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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition dispose of assets or (iii) property subject to 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor CompanyLiens;
(5) any encumbrance purchase money obligations, mortgage financings, Capitalized Lease Obligations and similar obligations 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 AgreementIndenture, 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 nature described in clause (3) of Section 4.08(a) with respect to the assets of the joint ventureor property purchased, acquired, financed, designed, developed, leased, constructed, repaired, replaced, maintained, installed, improved or insured in connection therewith or thereby (including any proceeds thereof, accessions thereto and any upgrades or improvements thereto);
(8) any encumbrance 6) encumbrances or restriction restrictions contained in agreements for the sale, transfer or other disposition of assets or property, including without limitation customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Company pursuant to an agreement that has been entered into for the direct sale, transfer or indirect sale or other disposition to a Person of all or substantially all a portion of the Capital Stock Stock, assets or assets property of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionSubsidiary;
(97) customary provisions in leasesrestrictions on cash, 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 Cash Equivalents or other deposits or net worth imposed by customers customers, suppliers or landlords under agreements contracts entered into in the ordinary course of business or as required by insurance surety or bonding companies;
(8) any provisions in joint venture agreements, stockholders agreements, partnership agreements, LLC agreements and other similar agreements, which (x) are customary or (y) do not adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due (as determined by the Company in good faith);
(9) any provisions in leases, subleases, licenses, sublicenses, asset sale agreements, sale/leaseback agreements or stock sale agreements and other agreements entered into by the Company or any Restricted Subsidiary that (x) are customary and entered into in the ordinary course of business or (y) do not adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due (as determined by the Company in good faith);
(10) applicable law or any applicable rule, regulation or order, or any license, permit or other authorization issued by any governmental or regulatory authority;
(11) encumbrances or restrictions arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, (x) detract from the value of the assets or property of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary (as determined by the Company in good faith), or (y) materially affect the Company’s ability to make payments of principal or interest payments on the Notes when due (as determined by the Company in good faith);
(12) contractual encumbrances or restrictions contained in any encumbrance Debt Facilities or restriction pursuant other Indebtedness Incurred by the Company in accordance with Section 4.09 that (x) are not materially more restrictive, when taken as a whole, than those applicable in either this Indenture or the Senior Credit Facility on the Issue Date (as determined by the Company in good faith), or (y) do not adversely affect the Company’s ability to Currency Agreements, Interest Rate Agreements make payments of principal or Commodity Hedging Agreements;interest payments on the Notes when due (as determined by the Company in good faith); or
(13) any encumbrance encumbrances or restriction arising pursuant restrictions imposed by any amendment, restatement, modification, renewal, increase, supplement, extension, refunding, replacement or refinancing of any of the contracts, agreements or other instruments referred to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to in the Effective Date pursuant to immediately preceding clauses (1) through (12) of this Section 4.04 if 4.08(b); provided, however, that the encumbrances and or restrictions contained in any such agreement amendment, restatement, modification, renewal, increase, supplement, extension, refunding, replacement 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 thatrefinancing are, in the good faith determination of an Officer or the Board of Directors judgment of the BorrowerCompany, are necessary not materially more restrictive, when taken as a whole, than the encumbrances and restrictions prior to such amendment, restatement, modification, renewal, increase, supplement, extension, refunding, replacement or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06refinancing.
Appears in 1 contract
Sources: Indenture (Viasat Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Following the Completion Date, the Issuer will not, and will not permit any of its Restricted 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 Issuer or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 4.07(a) hereof will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective Date Completion 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 Effective Completion Date (as determined in good faith by the BorrowerIssuer);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documentsthis Indenture, (ii) the Notes, the Existing Senior Notes, Existing Senior Notes Indentures, the Senior Secured Notes and the guarantees thereof, the Senior Secured Notes Indenture, the Holdco Notes, the Holdco Notes Guarantee, the Holdco Notes Indenture, the Existing Credit Facility and the guarantees thereof, the New Senior Guaranteed Notes Indenture Credit Facility and the New Senior Guaranteed Notesguarantees thereof, (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 (or any Additional Intercreditor additional intercreditor agreement), the Notes Escrow Agreement, including in each casethe Senior Secured Notes Escrow Agreement, any related security documentsthe Holdco Notes Escrow Agreement, escrow arrangements or other documents related to and the foregoingSenior 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 Borrower Issuer or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower 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 Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company Company, or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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, replaces an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) hereof or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) hereof or this Section 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 Lenders 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 BorrowerIssuer);
(6) any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(bB) contained in mortgages, pledges or other security agreements permitted under this Agreement Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement 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;
(cC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Issuer or any Restricted Subsidiary; or
(dD) 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 AgreementIndenture, 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 Completion 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 Lenders Holders of the Notes than (i) the encumbrances and restrictions contained in this Agreement the Existing Credit Facility or any Loan Document the New Credit Facility on the Effective Completion Date, together with the security documents associated therewith, if any, and the Intercreditor Agreement, 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 BorrowerIssuer) and where, in the case of clause (ii), the Borrower 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 BorrowerIssuer’s ability to make principal or interest payments under on the Loan Documents 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 BorrowerIssuer, 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 4.064.06 hereof.
Appears in 1 contract
Sources: Indenture (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1i) pay dividends dividends, in cash or otherwise, or make any other distributions on or in cash or otherwise on respect of its Capital Stock Equity Interests to the Borrower or any other Restricted Subsidiary or Subsidiary,
(ii) pay any Indebtedness or other obligations obligation owed to the Borrower Borrower, a Subsidiary Guarantor or any other Restricted Subsidiary;,
(2iii) make any loans or advances to the Borrower or any other Restricted Subsidiary; , or
(3iv) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) The foregoing limitations will not prohibitapply:
(1i) any encumbrance or restriction pursuant With respect to any Credit Facility or any other agreement or instrumentSections 8.08(a)(i), in each case(ii), (iii) and (iv), to restrictions which are:
(A) in effect at or entered into on the Effective Closing Date and any amendments(as such restrictions may be amended from time to time, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of such agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are any such amendment is not materially more restrictive, taken restrictive as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the BorrowerRestricted Subsidiary);
(2B) [Reserved]imposed by any Credit Document;
(3C) encumbrances imposed by the Credit Agreement with respect to Indebtedness permitted to be Incurred on or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related subsequent to the foregoingClosing Date (as such restrictions may be amended from time to time, provided that any such restriction is not materially more restrictive as to such Restricted Subsidiary);
(4D) 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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person existing at the time it became a Restricted Subsidiary (if such restriction was not created in each case, other than Capital Stock connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any a Subsidiary Guarantor (as such restrictions may be amended from time to time in a manner not materially more restrictive as to such Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5E) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or that result from the refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(18.08(b)(i)(A), Section 4.07(b)(3(B) or Section 4.07(b)(4(D) or this Section 4.07(b)(5)above; provided, however, that the encumbrances and restrictions with respect to provided such Restricted Subsidiary contained in any such agreement or instrument are restriction is no less favorable in any material respect to the Lenders taken as a whole than those under the encumbrances and restrictions contained in agreement evidencing the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower)Indebtedness so refinanced;
(6F) 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 leases or other agreements entered into in the ordinary course of business;
(12G) any encumbrances or restrictions required by any foreign or governmental, local or regulatory authority having jurisdiction over the Borrower, or any Restricted Subsidiary or any of their businesses in connection with any development grant made or other assistance provided to the Borrower, or any Restricted Subsidiary by such governmental authority;
(H) customary provisions in joint venture or similar agreements or other arrangements with minority investors in Restricted Subsidiaries and customary provisions in Indebtedness incurred by Restricted Subsidiaries organized outside the United States; provided, however, that such encumbrance or restriction pursuant is applicable only to Currency Agreementssuch Restricted Subsidiary; and provided, Interest Rate Agreements further, that (i) the encumbrance or Commodity Hedging Agreementsrestriction is customary in comparable agreements and (ii) the Borrower determines that any such encumbrance or restriction will not materially affect the ability of the Borrower to make any anticipated payments of the Obligations;
(13I) customary restrictions contained in asset sale, stock sale, merger and other similar agreements limiting the transfer, disposition or distribution of such property pending the closing of such sale, including any encumbrance or restriction arising imposed with respect to such Restricted Subsidiary pursuant to an agreement to dispose of all or instrument substantially all the Equity Interests or assets of such Restricted Subsidiary;
(J) customary restrictions imposed on the transfer or use of copyrighted or patented materials or other Intellectual Property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or in leases governing leasehold interests;
(K) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions of assets (including Equity Interests) by that Restricted Subsidiary pending its sale or other disposition;
(L) restrictions on Indebtedness incurred by any Restricted Subsidiary that is a Foreign Subsidiary; provided that such restrictions are then customary for Indebtedness of such type incurred in such jurisdiction; or
(M) restrictions resulting from any U.S. or foreign law, rule, regulation or order applicable to the Borrower or any Restricted Subsidiary.
(ii) With respect to Section 8.08(a)(iv) only, to restrictions:
(A) relating to any Indebtedness that is permitted to be Incurred subsequent to incurred and secured without also securing the Effective Date Obligations pursuant to Section 4.04 if 8.01 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 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 property securing such Indebtedness;
(14B) encumbering property at the time such property was acquired by the Borrower or any encumbrance or Restricted Subsidiary, so long as such restrictions arising relate solely to the property so acquired and were not created in connection with or in anticipation of such acquisition;
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder;
(D) imposed by virtue of any Purchase Money Notetransfer of, other Indebtedness agreement to transfer, option or a Qualified Receivables Financing that, in the good faith determination of an Officer right with respect to or the Board of Directors Lien on any property of the Borrower, are necessary Borrower or advisable to effect such Qualified Receivables Financingany Restricted Subsidiary not otherwise prohibited by this Agreement; or
(15E) imposed under any encumbrance purchase money Indebtedness described in Section 8.01(g) or restriction existing by reason Capitalized Lease Obligation in the ordinary course of any Lien permitted under Section 4.06business with respect only to the property the subject thereof.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
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 to the Borrower or any Restricted Subsidiary Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Borrower Company or any other Restricted Subsidiary;
, (2b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary; or
Subsidiary or (3c) sell, lease or transfer any of its property or assets Property to the Borrower Company or any other Restricted Subsidiary. The foregoing limitations will not apply (i) with respect to clauses (a), provided that (xb) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (yc), to restrictions (A) arising under agreements of the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or Company and any Restricted Subsidiary to other Indebtedness Incurred by (as of the Borrower or any Restricted 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.
(bIssue Date) Section 4.07(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, that were in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan DocumentsIssue Date, (iiB) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related relating to the foregoing;
(4) any encumbrance or restriction pursuant to an agreement or instrument Debt 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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person and existing at the time it became a Restricted Subsidiary (if such restriction was not created in each case, other than Capital Stock connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower or any another Restricted Subsidiary, (C) and outstanding on such date; provided that, for that result from the purposes Refinancing of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Debt Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (i)(A) or Section 4.07(b)(4(B) above or in clause (ii)(A) or this Section 4.07(b)(5)(B) below, PROVIDED such restriction is no more restrictive than those under the agreement evidencing the Debt so Refinanced, or (D) any restriction required by any governmental body or regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; provided, however, that the encumbrances and restrictions (ii) with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the 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 Borrower);
(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;
clause (c) only, to restrictions (A) relating to Debt that is permitted to be Incurred and secured without also securing the Securities pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements Sections 4.03 and 4.05 that limit the right of the Borrower debtor to dispose of the Property securing such Debt, (B) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary; or
(d) pursuant , so long as such restriction relates solely 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 Property so acquired and was not created in connection with or any encumbrance in anticipation of such acquisition, (C) resulting from customary provisions restricting subletting or restriction pursuant to a joint venture agreement assignment of leases or customary provisions in other agreements that imposes restrict assignment of such agreements or rights thereunder or (D) customary restrictions on contained in asset sale agreements limiting 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) Property 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 4.06sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company (it being understood that the priority of any Preferred Stock in receiving dividend or any Restricted Subsidiaryliquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Borrower Company (it being understood that the subordination of loans or advances made to the Company to other Indebtedness Incurred by any Restricted SubsidiarySubsidiary 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 Borrower or any Restricted Subsidiary, provided Company (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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, transfers shall not be deemed to constitute such an encumbrance include any type of transfer described in clause (1) or restriction.(2) above),
(b) Section 4.07(a) will not prohibit:
(1A) any encumbrance or restriction pursuant to any (i) applicable law, rule, regulation or order or (ii) an agreement, including without limitation the Credit Facility or any other agreement or instrument, in each caseAgreement, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower)Date;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 on or before Incurred by such Restricted Subsidiary prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower 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, 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryCompany) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5C) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (A) or Section 4.07(b)(4(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 Section 4.07(b)(5covenant 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 are no less favorable in any material respect to the Lenders amendment, taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendmentwhole, supplement or other modification relates are not materially less favorable (as determined in good faith by the Borrower)Company) to the Holders than the encumbrances and restrictions contained in such predecessor agreements;
(6D) in the case of clause (3), any encumbrance or restriction:
(ai) 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;
(bii) contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property or assets subject to such security agreements or 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
(diii) pursuant arising or agreed 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, not relating to any Indebtedness, and that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
(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;
(11E) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or lessors or required by insurance, surety or bonding companies, in each case under contracts entered into in the ordinary course of business;
(F) with respect to a Restricted Subsidiary, any encumbrance or restriction imposed pursuant to an agreement entered into for the sale or disposition of a substantial portion of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(G) provisions limiting the disposition or distribution of assets or property or assignment in joint venture agreements, asset sale agreements, leases, intellectual property licenses, sale-leaseback agreements, stock sale agreements and other similar 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
(15H) any encumbrance or restriction existing under, by reason of or with respect to Indebtedness Incurred by any Restricted Subsidiary permitted to be Incurred under Section 4.09, provided that the Company determines in good faith at the time such Indebtedness is Incurred that such encumbrance or restriction would not impair the ability of the Company to make payments of interest and principal on the Notes when due;
(I) any encumbrance or restriction in any agreement or instrument of a Receivables Subsidiary governing or in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Subsidiary or the Receivables that are subject to such Qualified Receivables Transaction;
(J) existing under, by reason of or with respect to Indebtedness Incurred by Foreign Subsidiaries permitted to be Incurred under Section 4.09;
(K) existing by reason of any Lien permitted contractual obligation that is reasonably determined by the Company not to materially adversely affect the ability of the Company to perform its obligations under Section 4.06this Indenture, the Notes, or the Exchange Notes; or
(L) existing by reason of this Indenture, the Notes, the Exchange Notes or the Note Guarantees.
Appears in 1 contract
Sources: Indenture (Aecom Technology Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Each of Superior Energy and Issuer will not, and will not permit any of its Restricted Subsidiaries 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 the Borrower Superior Energy, Issuer or any Restricted Subsidiary 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 Borrower Superior Energy, Issuer or any of their Restricted Subsidiary;
Subsidiaries (2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower Superior Energy, Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Superior Energy, Issuer or any of their Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any 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(2) above).
(b) Section 4.07(a) The preceding provisions will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other an agreement or instrument, in each case, in effect at or entered into on the Effective Date Issue Date, including any such Debt Facility and any amendmentsthe Notes, 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 Exchange Notes and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrower)this Indenture;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) 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 (i) such Person Restricted Subsidiary was acquired by Superior Energy or mergedIssuer, consolidated or otherwise combined with or into as the Borrower or any Restricted Subsidiary, case may be (ii) such agreement or instrument is assumed by the 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 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 Borrower or was mergedIssuer), consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower 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 Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (1) or (2) of this Section 4.07(b)(44.08(b) or this clause (3) or contained in any amendment to an agreement referred to in clause (1) or (2) of this Section 4.07(b)(54.08(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 Lenders taken as a whole more restrictive than the encumbrances and restrictions with respect to such Restricted Subsidiary 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 Borrower)predecessor agreements;
(64) any such encumbrance or restriction:
(a) that restricts restriction consisting of customary non-assignment provisions in a customary manner leases governing leasehold interests to the subletting, assignment or extent such provisions restrict the transfer of any property or asset that is subject to a lease, license or similar contract, the lease or the assignment or transfer of any lease, license or other contractproperty leased thereunder;
(b5) in the case of clause (3) of Section 4.08(a) hereof, restrictions contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower Superior Energy, Issuer 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 security agreements or mortgages, pledges or other security agreements;
(c6) pursuant to customary provisions restricting dispositions limiting the disposition or distribution of real assets or property interests set forth in any reciprocal easement 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 the Borrower or any Restricted Subsidiary; or
(d) pursuant business, which limitation is applicable only to the terms assets that are the subject of any license, authorization, concession or permitsuch agreements;
(7) any encumbrance restrictions imposed by customers on cash or restriction other amounts deposited by them 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 contracts entered into in the ordinary course of business;
(108) 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) encumbrances of Section 4.08(a) hereof;
(9) restrictions on the transfer of property or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license or order, or assets required by any regulatory authority having jurisdiction over Superior Energy, Issuer or stock exchangesuch Restricted Subsidiary;
(1110) 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, 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 restrictions at a Restricted Subsidiary level comparable to those applicable to Issuer) or (y) other Indebtedness Incurred or Preferred Stock issued by a Non-Guarantor Subsidiary, in each case permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09; provided that with respect to clause (y), such encumbrances or restrictions will not materially affect Issuer’s ability to make anticipated principal and interest payments on the Notes (in the good faith judgment 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 Currency Agreements, Interest Rate Agreements any Debt Facilities and any agreement in effect at or Commodity Hedging Agreements;entered into on the Issue Date; and
(132) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any effecting a Refinancing of Indebtedness permitted to be Incurred subsequent to the Effective Date pursuant to an agreement referred to in the immediately preceding clause (1) of this Section 4.04 if 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 instrument taken as a whole amendment are not materially less favorable to the Lenders no more restrictive in any material respect than (i) the encumbrances and restrictions with respect to Superior Energy 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 4.06predecessor agreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary (other than a Subsidiary Guarantor) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than a Subsidiary Guarantor) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Borrower Company or any of its Restricted Subsidiaries, or pay any Indebtedness owed to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, 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 assets or property 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(2) above).
(b) Section 4.07(a4.08(a) will shall not prohibit:
(1) any encumbrance or restriction pursuant apply to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions of the Company or any of its Restricted Subsidiaries in effect on the Issue Date, including, without limitation, pursuant to the Senior Credit Facilities, the Security Documents, the First Lien Intercreditor Agreement (iand, if entered into, the Second Lien Intercreditor Agreement), related Hedging Obligations and Indebtedness permitted pursuant to clause (3) of Section 4.09(b);
(2) this Indenture, the Notes and the Subsidiary Guarantees;
(3) any Loan Documentsagreement or other instrument of a Person acquired by or merged, amalgamated or consolidated with or into the Company or any Restricted Subsidiary or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, in each case that was in existence at the time of such acquisition (iior at the time it merges, amalgamates or consolidates with or into the Company or any Restricted Subsidiary or is assumed in connection with the acquisition of assets or property from such Person) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notesor designation, (iii) the Existing Notes Indentures and the Existing Notesbut, (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, not created in contemplation thereof, which encumbrance or restriction is not applicable to any related security documentsPerson, escrow arrangements or the assets or property of any Person, other documents related to than the foregoingPerson and its Subsidiaries, or the assets or property of the Person and its Subsidiaries, so acquired or designated (including after-acquired assets and property);
(4) any encumbrance or restriction pursuant in the case of clause (3) of Section 4.08(a), Permitted Liens that limit the right of the debtor 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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition dispose of assets or (iii) property subject to 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor CompanyLiens;
(5) any encumbrance Purchase Money Obligations, mortgage financings, Capitalized Lease Obligations and similar obligations 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 AgreementIndenture, 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 nature described in clause (3) of Section 4.08(a) with respect to the assets of the joint ventureor property purchased, acquired, financed, designed, developed, leased, constructed, repaired, replaced, maintained, installed, improved or insured in connection therewith or thereby (including any proceeds thereof, accessions thereto and any upgrades or improvements thereto);
(8) any encumbrance 6) encumbrances or restriction restrictions contained in agreements for the sale, transfer or other disposition of assets or property, including without limitation customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Company pursuant to an agreement that has been entered into for the direct sale, transfer or indirect sale or other disposition to a Person of all or substantially all a portion of the Capital Stock Stock, assets or assets property of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionSubsidiary;
(97) customary provisions in leasesrestrictions on cash, 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 Cash Equivalents or other deposits or net worth imposed by customers customers, suppliers or landlords under agreements contracts entered into in the ordinary course of business or as required by insurance surety or bonding companies;
(8) any provisions in joint venture agreements, stockholders agreements, partnership agreements, LLC agreements and other similar agreements, which (x) are customary or entered into in the ordinary course of business or (y) do not adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due (as determined by the Company in good faith);
(9) any provisions in leases, subleases, licenses, sublicenses, asset sale agreements, sale/leaseback agreements or stock sale agreements and other agreements entered into by the Company or any Restricted Subsidiary that (x) are customary and entered into in the ordinary course of business or (y) do not adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due (as determined by the Company in good faith);
(10) applicable law or any applicable rule, regulation or order, or any license, permit or other authorization issued by any governmental or regulatory authority;
(11) encumbrances or restrictions arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, (x) detract from the value of the assets or property of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary (as determined by the Company in good faith), or (y) materially affect the Company’s ability to make payments of principal or interest payments on the Notes when due (as determined by the Company in good faith);
(12) contractual encumbrances or restrictions contained in any encumbrance Debt Facilities or restriction pursuant other Indebtedness Incurred by the Company in accordance with Section 4.09 that (x) are not materially more restrictive, when taken as a whole, than those applicable in either this Indenture or the Senior Credit Facilities on the Issue Date (as determined by the Company in good faith), or (y) do not adversely affect the Company’s ability to Currency Agreements, Interest Rate Agreements make payments of principal or Commodity Hedging Agreements;interest payments on the Notes when due (as determined by the Company in good faith); or
(13) any encumbrance encumbrances or restriction arising pursuant restrictions imposed by any amendment, restatement, modification, renewal, increase, supplement, extension, refunding, replacement or refinancing of any of the contracts, agreements or other instruments referred to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to in the Effective Date pursuant to immediately preceding clauses (1) through (12) of this Section 4.04 if 4.08(b); provided, however, that the encumbrances and or restrictions contained in any such agreement amendment, restatement, modification, renewal, increase, supplement, extension, refunding, replacement 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 thatrefinancing are, in the good faith determination of an Officer or the Board of Directors judgment of the BorrowerCompany, are necessary not materially more restrictive, when taken as a whole, than the encumbrances and restrictions prior to such amendment, restatement, modification, renewal, increase, supplement, extension, refunding, replacement or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06refinancing.
Appears in 1 contract
Sources: Indenture (Maxar Technologies Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
, (2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
Subsidiary or (3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1A) any encumbrance or restriction pursuant to any Credit Facility applicable law, rule, regulation, or any other order or an agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower)Closing Date;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 on or before Incurred by such Restricted Subsidiary prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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, 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryCompany) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5C) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing in the case of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1clause (3), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(6) any encumbrance or restriction:
(ai) 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;or
(bii) contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property or assets subject to such security agreements or mortgages, pledges or other security agreements;
(cD) 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 Subsidiary, any of its property or assets) 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 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;
(11E) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(F) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(12G) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(13) any encumbrance or restriction arising pursuant to contained in an agreement or instrument relating to any evidencing Indebtedness of a Restricted Subsidiary permitted to be Incurred subsequent to the Effective Closing Date pursuant to Section 4.04 if 4.03; provided, however, that such encumbrance or restriction applies only in the encumbrances event of and restrictions during the continuance of a default contained in such agreement; and
(H) 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 of the type referred to in clauses (x1), (2) will not adversely affectand (3) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in any material respectclauses (A) through (G) above; provided that such amendments, the Borrower’s ability to make principal modifications, restatements, renewals, increases, supplements, refundings, replacements 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 thatrefinancings are, in the good faith determination judgment of an Officer or the Board of Directors of Directors, no more restrictive with respect to such dividend and other payment restrictions than those contained in the Borrowerdividend or other payment restrictions prior to such amendment, are necessary modification, restatement, renewal, increase, supplement, refunding, replacement or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06refinancing.
Appears in 1 contract
Sources: Indenture (Seagate Technology Malaysia Holding Co Cayman Islands)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Following the Completion Date, the Company will not, and will not permit any of its Restricted 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 Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 4.07(a) hereof will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective Date Completion 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 Effective Completion Date (as determined in good faith by the BorrowerIssuer);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documentsthis Indenture, (ii) the Notes, the Note Guarantees, the Existing Senior Notes, Existing Senior Notes Indentures, the New Senior Guaranteed Notes Indenture and Notes, the New Senior Guaranteed Notes Indenture, the Holdco Notes, (iii) the Holdco Notes Guarantee, the Holdco Notes Indenture, the Existing Notes Indentures Credit Facility and the Existing Notesguarantees thereof, (iv) the Existing Cablevision Notes Indentures New Credit Facility and the Existing Cablevision Notesguarantees thereof, and (v) the Intercreditor Agreement and Agreement, any Additional Intercreditor Agreement, including in each casethe Notes Escrow Agreement, any related security documentsthe New Senior Notes Escrow Agreement, escrow arrangements or other documents related to the foregoingHoldco Notes Escrow Agreement, and the 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 Borrower Company or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower 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 Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company Company, or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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, replaces an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 Lenders 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 BorrowerIssuer);
(6) any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(bB) contained in mortgages, pledges or other security agreements permitted under this Agreement Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement 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;
(cC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary; or
(dD) 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 AgreementIndenture, 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 Completion 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 Lenders Holders of the Notes than (i) the encumbrances and restrictions contained in this Agreement the Existing Credit Facility or any Loan Document the New Credit Facility on the Effective Completion Date, together with the security documents associated therewith, if any, and the Intercreditor Agreement, 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 BorrowerIssuer) and where, in the case of clause (ii), the Borrower 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 BorrowerIssuer’s ability to make principal or interest payments under on the Loan Documents 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 BorrowerCompany, 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 4.064.06 hereof.
Appears in 1 contract
Sources: Indenture (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company and any Permitted Affiliate Parent will not, and will not permit any of its Restricted Subsidiaries Subsidiary (other than any Proceeds Loan Borrowers, any Permitted Affiliate Parent and any Affiliate 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 any Proceeds Loan Borrowers, any Permitted Affiliate Parent and any Affiliate 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 Borrower Company, any Permitted Affiliate Parent or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower Company, any Permitted Affiliate Parent or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower Company, any Permitted Affiliate Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or Company, any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower Permitted Affiliate Parent or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 4.07(a4.08(a) will not prohibit:
(1) any encumbrance or restriction pursuant to an agreement in effect, entered into or substantially agreed, on the 2021 Amendment Effective Date, including, without limitation, this Agreement, the other Loan Documents, the SPV Collateral Documents, any Credit Facility or Collateral Sharing 95007615_1 Agreement, the Covenant Agreement, the Proceeds Loan Agreement, the Proceeds Loan Collateral Documents, and any other agreement or instrumentrelated documentation (including the security documents securing the Indebtedness thereunder and the guarantees thereof), in each case, as in effect at effect, or entered into substantially agreed, on the 2021 Amendment Effective 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 Effective Date (as determined in good faith by the Borrower)Date;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 (i) such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company, a Permitted Affiliate Parent or any Restricted SubsidiarySubsidiary or designated a Permitted Affiliate Parent, an Affiliate Subsidiary or a Restricted Subsidiary (ii) or became a Restricted Subsidiary as a result thereof), or which such agreement or instrument is assumed by the Borrower Company, a Permitted Affiliate Parent 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 Borrower Company, a Permitted Affiliate Parent or a Restricted Subsidiary or was merged, merged or consolidated or otherwise combined with or into the Borrower Company, a Permitted Affiliate Parent or any Restricted SubsidiarySubsidiary or in contemplation of 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 Section 4.07(b)(44.08(b)(2), if another Person is the Successor Company or Company, any Subsidiary thereof, any thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(34.08(b)(1) or Section 4.07(b)(44.08(b)(2) or this Section 4.07(b)(5) (an “Initial Agreement”4.08(b)(3) or contained in any amendment, supplement supplement, restatement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(34.08(b)(1) or Section 4.07(b)(44.08(b)(2) or this Section 4.07(b)(54.08(b)(3); provided, however, provided that the encumbrances and restrictions restrictions, taken as a whole, with respect to the Company, such Permitted Affiliate Parent or such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole Finance Parties than the encumbrances and restrictions contained in the Initial Agreement such agreements referred to in Section 4.08(b)(1) or Initial Agreements to which such refinancing or amendment, supplement or other modification relates Section 4.08(b)(2) (as determined conclusively in good faith by the BorrowerBoard of Directors or senior management of the Company or a Permitted Affiliate Parent);
(64) in the case of Section 4.08(a)(3), any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(bB) contained in mortgages, pledges or other security agreements Liens permitted under this Agreement or securing Indebtedness of the Borrower Company, a Permitted Affiliate Parent 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;
(cC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company, a Permitted Affiliate Parent or any Restricted Subsidiary; or
(dD) pursuant to contained in operating leases for real property and restricting only the terms transfer of any license, authorization, concession or permitsuch real property upon the occurrence and during the continuance of a default in the payment of rent;
(75) any encumbrance or restriction pursuant to (A) Purchase Money Obligations and 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 95007615_1 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 arising in connection with, or any contractual requirement incurred with respect to, any Purchase Money Note, other Indebtedness or a Qualified Receivables Transaction relating exclusively to a joint venture agreement that imposes restrictions on Receivables Entity that, in the transfer good faith determination of the assets Board of Directors or senior management of the joint ventureCompany or a Permitted Affiliate Parent, are necessary to effect such Qualified Receivables Transaction;
(8) 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 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;
(98) (A) customary provisions in leases, licensesasset sale agreements, joint venture agreements and other similar agreements and instruments entered into by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in the ordinary course of businessbusiness 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 or any related shareholders, joint venture or other agreements (including restrictions on the payment of dividends or other distributions);
(109) encumbrances or restrictions arising or existing by reason of applicable law Law or any applicable rule, regulation, governmental license or license, order, concession, franchise, or permit or required by any regulatory authority or stock exchangeauthority;
(1110) 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;
(1211) any encumbrance or restriction pursuant to Currency Agreements, Commodity Agreements or Interest Rate Agreements or Commodity Hedging Agreements;
(1312) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the 2021 Amendment Effective Date pursuant to Section 4.04 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 Lenders Finance Parties than (i) the encumbrances and restrictions contained in this Agreement or Agreement, the other Loan Documents, and any Loan Document related documentation, in each case, as in effect on the 2021 Amendment Effective Date, Date (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent) or (iiB) 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 BorrowerBoard of Directors or senior management of the Company or a Permitted Affiliate Parent) and whereand, in each case, either (i) the case of clause (ii), the Borrower determines at the time of issuance of such Indebtedness Company or a Permitted Affiliate Parent reasonably believes that such encumbrances or and restrictions (x) will not adversely affect, in any material respect, materially affect the Borrower’s Proceeds Loan Borrowers’ ability to make principal or interest payments under on the Loan Documents Proceeds Loans as and when they become come due or (yii) such encumbrances and restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness;
(13) any encumbrance or restriction arising by reason of customary non-assignment provisions in agreements; and
(14) any encumbrance or restrictions arising in connection with restriction pursuant to 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.Intercreditor Agreement. 95007615_1
Appears in 1 contract
Sources: Additional Facility Joinder Agreement (Liberty Latin America Ltd.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower Company or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Company, (2b) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets to the Borrower Company, except:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Spin-Off Date (including the Secured Indenture, the Secured Notes and the Guarantees, this Indenture, the Notes and the Guarantees thereto);
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Company (other than 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company) and outstanding on such date;
(iii) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement or other instrument referred to in clause (a) or (b) of this Section 4.05 or contained in any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing to an agreement referred to in clauses (a) or (b) of this Section 4.05; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing, taken as a whole, are no less favorable to the Company (as reasonably determined by the Company in good faith) than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements; and
(iv) customary encumbrances or restrictions contained in contracts or agreements for the dispositions of assets (including Equity Interests) applicable to such assets pending consummation of such dispositions, including customary encumbrances or restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the disposition of Equity Interests or assets of such Restricted Subsidiary;
(v) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(vi) provisions contained in any approval, license or permit with a regulatory authority, in each case entered into in the ordinary course of business;
(vii) restrictions on cash, Cash Equivalents or other deposits or net worth imposed under contracts entered into in the ordinary course of business, including such restrictions imposed by customers, suppliers or insurance, surety or bonding companies;
(viii) [reserved];
(ix) provisions in agreements or instruments which prohibits the payment or making of dividends or other distributions other than on a pro rata basis;
(x) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein);
(xi) any encumbrance or restriction contained in the terms of any agreement under which Indebtedness is permitted to be Incurred after the Spin-Off Date pursuant to Section 4.03 if either (i) the encumbrance or restriction applies only in the event of and during the continuance of a payment default contained in such Indebtedness or agreement or (ii) the Company reasonably determines in good faith at the time any such Indebtedness is Incurred (and at the time of any modification of the terms of any such encumbrance or restriction) that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes;
(xii) any encumbrance or restriction effected in connection with a Qualified Receivables Factoring or Qualified Receivables Financing that, in the good faith determination of the Company, is necessary or advisable to effect such Qualified Receivables Factoring or Qualified Receivables Financing, as applicable;
(xiii) customary restrictions under agreements relating to cash pooling or cash management arrangements;
(xiv) any encumbrance or restriction existing by reason of any lien permitted under Section 4.13;
(xv) any encumbrances, restrictions, contractual requirements or other provisions in connection with any of the Transactions in a manner consistent in all material respects with the disclosures set forth in the Offering Memorandum;
(xvi) any encumbrance or restriction consisting of customary provisions in leases, subleases, licenses, sublicenses, contracts and other agreements to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(xvii) 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;
(xviii) any encumbrance or restriction contained in any Secured Indebtedness otherwise permitted to be incurred pursuant to the covenants described under Section 4.03 and Section 4.13 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(xix) any encumbrance or restriction contained in any agreement relating to purchase money indebtedness permitted by Section 4.03 if such restrictions or conditions apply only to the assets securing such Indebtedness;
(xx) any encumbrance or restriction consisting of customary non-assignment provisions in a lease, license, agreement or other contract, in each case entered into in the ordinary course of business or consistent with past practice;
(xxi) customary provisions in operating or other similar agreements, asset sale agreements and stock sale agreements entered into in connection with the entering into of such transaction, which limitation is applicable only to the assets that are the subject of those agreements; and
(xxii) 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, (x) detract from the value of the property or assets of the Company or any Restricted SubsidiarySubsidiary in any manner material to the Company or any Restricted Subsidiary or (y) materially affect the Company ability to make future principal or interest payments under the Notes, provided that in each case, as determined by the Company in good faith. For purposes of determining compliance with this Section 4.05, (xi) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (yii) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any a Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any such Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or a restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 loans 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 4.06advances.
Appears in 1 contract
Sources: Indenture (Qnity Electronics, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will notNeither the Company nor a Guarantor shall, and will not neither of them shall permit any of its Restricted Subsidiaries Subsidiary to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1) pay dividends dividends, in cash or otherwise, or make any other distributions on or in cash or otherwise on respect of its Capital Stock to the Borrower Company, a Guarantor or any other Restricted Subsidiary or Subsidiary,
(2) pay any Indebtedness Debt or other obligations obligation owed to the Borrower Company, a Guarantor or any other Restricted Subsidiary;,
(23) make any loans or advances to the Borrower Company, a Guarantor or any other Restricted Subsidiary; , or
(34) sell, lease or transfer any of its property or assets Property to the Borrower Company, a Guarantor 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) The foregoing limitations will not prohibitapply:
(1) any encumbrance or restriction pursuant with respect to any Credit Facility or any other agreement or instrumentSections 4.13(a)(1), in each case(2), (3) and (4), to restrictions which are:
(A) in effect at or entered into on the Effective Issue Date and (as such restrictions may be amended from time to time; provided that any amendmentssuch amendment is not materially more restrictive as to a Restricted Subsidiary);
(B) imposed by the Notes or this Indenture, restatementsor by indentures governing other Debt the Company or a Guarantor Incurs (and, modificationsif such Debt is Guaranteed, renewals, supplements, refundings, replacements or refinancings by the guarantors of such agreementsDebt) ranking on a parity with the Notes or the Notes Guarantees; provided that the amendmentsrestrictions imposed by such indentures are no more restrictive than the restrictions imposed by this Indenture;
(C) imposed by a Credit Facility with respect to Debt permitted to be Incurred on or subsequent to the date of this Indenture; provided that the restrictions imposed by such Credit Facility on the ability of any Restricted Subsidiary to take action under Section 4.13(a)(1), restatements(2), modifications, renewals, supplements, refundings, replacements (3) or refinancings (4) above are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictive than the restrictions than those contained in those agreements on the Effective Date (as determined in good faith imposed by the Borrower)Credit Agreement;
(2D) [Reserved];
(3) encumbrances or restrictions existing under or imposed by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction pursuant to an agreement or instrument Debt 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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person existing at the time it became a Restricted Subsidiary (if such restriction was not created in each case, other than Capital Stock connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Companya Guarantor;
(5E) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing that result from the Refinancing of Indebtedness Debt Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(34.13(a)(1) or Section 4.07(b)(4(4) or this Section 4.07(b)(5)above; provided, however, that the encumbrances and restrictions with respect to provided such Restricted Subsidiary contained in any such agreement or instrument are restriction is no less favorable in any material respect to the Lenders Holders of Notes than those under the agreement evidencing the Debt so Refinanced when 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 Borrower)whole;
(6F) 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 restrictions on cash or other contractdeposits or net worth imposed by leases or other agreements entered into in the ordinary course of business;
(bG) 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 any encumbrances or restrictions restrict required by any governmental, local or regulatory authority having jurisdiction over the transfer Company, a Guarantor or any Restricted Subsidiary or any of the property or assets subject to such mortgages, pledges their businesses in connection with any development grant made or other security agreementsassistance provided to the Company, a Guarantor or any Restricted Subsidiary by such governmental authority;
(cH) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement joint venture or similar agreements of or other arrangements with minority investors in Restricted Subsidiaries and customary provisions in Debt Incurred by Restricted Subsidiaries organized outside the Borrower United States; provided, however, that such encumbrance or any restriction is applicable only to such Restricted Subsidiary; or
and provided, further, that (di) pursuant the encumbrance or restriction is customary in comparable agreements and (ii) the Company determines that any such encumbrance or restriction will not materially affect the ability of the Company to make any anticipated payments of principal or interest on the terms of any license, authorization, concession or permitNotes;
(7I) 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 Securitization Entity in connection with a Qualified Securitization Transaction; provided, however, that such encum- brances and restrictions are customarily required by the institutional sponsor or arranger of such Qualified Securitization Transaction in similar types of documents relating to the purchase of similar receivables in connection with the financing thereof;
(J) customary restrictions contained in asset sale agreements, stock sale agreements and other similar agreements limiting the transfer, disposition or distribution of such Property pending the closing of such sale, including any restriction imposed with respect to such Restricted Subsidiary (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 dispose 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;Subsidiary; or
(9K) customary restrictions imposed on the transfer of copyrighted or patented materials or other intellectual property and customary provisions in leasesagreements that restrict the assignment of such agreements or any rights thereunder.
(2) with respect to Section 4.12(a)(4) only, licensesto restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Section 4.11 that limit the right of the debtor to dispose of the Property securing such Debt,
(B) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary, joint venture so long as such restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such acquisition,
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements and other similar that restrict assignment of such agreements and instruments entered into or rights thereunder,
(D) imposed by virtue of any transfer of, agreement to transfer, option or right with respect to or Lien on, any Property of the Company or the relevant Restricted Subsidiary not otherwise prohibited by this Indenture, or
(E) imposed under any Purchase Money Debt or Capital Lease Obligation 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 business with respect only to the Effective Date pursuant to Section 4.04 if Property 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 4.06subject thereof.
Appears in 1 contract
Sources: Indenture (Moore Corporation LTD)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted 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 to the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the Borrower or any Restricted SubsidiaryCompany;
(2ii) make any loans or advances to the Borrower or any Restricted SubsidiaryCompany; or
(3iii) sell, lease or transfer any of its property or assets to the 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitCompany; except:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4a) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the Issue Date, including the Senior Subordinated Notes Indenture and the Credit Agreement;
(b) any encumbrance or restriction with respect to such a Person or Restricted Subsidiary pursuant to an agreement relating to any Capital Indebtedness Incurred or Preferred Stock or Indebtedness of a Person, entered into issued and outstanding by such Restricted Subsidiary on or before prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company and outstanding on such date (ii) such agreement or instrument is assumed by the 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 or Preferred Stock 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4Company), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 such a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for evidencing Indebtedness Incurred without violation of the direct Indenture or indirect sale or disposition to effecting a Person refinancing 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 Indebtedness issued 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.an
Appears in 1 contract
Sources: Indenture (Ero Marketing Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Holdings and Borrower will not, and will not permit any of its Restricted Subsidiaries 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 Borrower or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Borrower, (2b) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets to the Borrower or any Restricted SubsidiaryBorrower, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.except
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the Closing Date (including this Agreement and the Senior Secured Credit Facility);
(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 a Person, entered into Incurred by such Restricted Subsidiary on or before prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryBorrower) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any encumbrance or restriction pursuant to an agreement any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or instrument effecting a refunding, replacement or refinancing Refinancings of the Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or any of the foregoing clauses and restrictions contained in any amendmentIndebtedness incurred after the date hereof in accordance with the terms of this Agreement; provided that such amendments, supplement modifications, restatements, renewals, increases, supplements, refundings, replacements or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5); provided, however, that the encumbrances and restrictions Refinancings are not materially more restrictive with respect to such Restricted Subsidiary dividend and other payment restrictions than those contained in the applicable instrument governing such Indebtedness as in effect on the Closing Date; provided that, with respect to any agreement governing such agreement other Indebtedness, the provisions relating to such encumbrance or instrument restriction are no less favorable to Borrower in any material respect to the Lenders taken as a whole determined by Borrower in its reasonable and good faith judgment than the encumbrances and restrictions provisions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (Senior Secured Credit Facility as determined in good faith by effect on the Borrower)Closing Date;
(6iv) 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 contracts entered into in the ordinary course of business;
(12v) any such encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements consisting of customary non-assignment provisions in contracts or Commodity Hedging Agreementsin leases governing leasehold interest and in intellectual property contracts and licenses;
(13vi) any encumbrance or restriction arising with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or instrument relating to disposition of assets (including Capital Stock) of such Restricted Subsidiary permitted by this Agreement pending the closing of such sale or disposition;
(vii) any Indebtedness permitted to be Incurred subsequent to the Effective Date pursuant to Section 4.04 if the encumbrances and restriction arising under applicable law, regulation or order;
(viii) restrictions contained in any such agreement security agreements or instrument taken as mortgages securing Indebtedness of a whole are not materially less favorable Restricted Subsidiary to the Lenders than extent such restrictions restrict the transfer of the property subject to such security agreements or mortgages; and
(iix) 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 transfer 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 assets subject 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 4.06this Agreement imposed by the holder of such Lien.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Borrower Company or any of its Restricted Subsidiary Subsidiaries or pay any Indebtedness or other obligations indebtedness owed to the Borrower Company or any its Restricted SubsidiarySubsidiaries;
(2ii) make any loans or advances to the Borrower Company or any of its Restricted SubsidiarySubsidiaries; or
(3iii) sell, lease or transfer any of its property properties or assets to the Borrower Company or any of its 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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 restrictionSubsidiaries.
(b) The preceding restrictions set forth in Section 4.07(a4.12(a) will above shall not prohibitapply to encumbrances or restrictions existing under or by reason of:
(1i) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, Existing Indebtedness as in effect at or entered into on the Effective Date date of this Indenture;
(ii) agreements existing on the date of this Indenture, and any amendments, modifications, restatements, modificationsrenewals, renewalsextensions, supplements, refundings, replacements or refinancings of such agreements; thereof, provided that the such amendments, modifications, restatements, modificationsrenewals, renewalsextensions, supplements, refundings, replacements or refinancings are not materially no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements as in effect on the Effective Date date of this Indenture, as determined in good faith by the Board of Directors;
(iii) this Indenture and the Notes and/or the Collateral Documents;
(iv) the Credit Agreement and/or the documentation for the First Priority Liens; provided that the restrictions contained in any such agreement are no more restrictive, taken as a whole (as determined in good faith by the BorrowerBoard of Directors), than those contained in such agreements as of the date hereof;
(2v) [Reserved]applicable law;
(3) encumbrances or restrictions existing under or by reason of (ivi) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements instrument governing Indebtedness or other documents related to the foregoing;
(4) any encumbrance or restriction pursuant to an agreement or instrument Capital Stock 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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of its Restricted Subsidiaries as in effect at the time of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
acquisition (5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 except to the extent such encumbrances Indebtedness or restrictions restrict the transfer Capital Stock was incurred in connection with or in contemplation of the property or assets subject to such mortgagesacquisition), 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 which encumbrance or restriction pursuant is not applicable to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreementany Person, 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 properties or assets of such Restricted Subsidiary (any Person, other than the Person, or the property or assets that are subject of the Person, so acquired, provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to such restriction) pending the closing of such sale or dispositionbe incurred;
(9vii) customary non-assignment provisions in leases, licenses, joint venture agreements licenses and other similar agreements and instruments entered into in the ordinary course of business;
(10viii) encumbrances or purchase money obligations for property acquired in the ordinary course of business that impose 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 exchangethe nature described in this Section 4.08(a)(iii) on the property so acquired;
(11ix) any encumbrance agreement for the sale of a Restricted Subsidiary (whether by stock sale, asset sale, merger, consolidation or restriction otherwise) that restricts distributions by such Restricted Subsidiary pending its sale;
(x) Permitted Refinancing Indebtedness, provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole (as determined in good faith by the Board of Directors), than those contained in the agreements governing the Indebtedness being refinanced;
(xi) secured Indebtedness otherwise permitted to be incurred pursuant to the provisions under Section 4.09 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(xii) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements entered into in the ordinary course of business; or
(xiii) restrictions on cash or other deposits or net worth imposed by customers under agreements contracts 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 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer will not, and will not permit any of its Restricted Subsidiaries (other than any Existing Digital Assets 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 Borrower Issuer or any of its Restricted Subsidiary 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 Borrower Issuer or any of its Restricted SubsidiarySubsidiaries;
(2) make any loans or advances to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries; or
(3) sell, lease or otherwise transfer any of its property properties or assets to the Borrower Issuer or any of its 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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 restrictionSubsidiaries.
(b) Section 4.07(a) However, the preceding restrictions will not prohibitapply to encumbrances or restrictions existing under or by reason of:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, agreements as in effect at or entered into on the Effective Date Issue Date, including agreements governing Existing Indebtedness and Credit Facilities as in effect or entered into on the Issue Date, and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of such those agreements; provided that the amendments, modifications, restatements, modificationsrenewals, renewalsincreases, 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 Effective Date (as determined in good faith by the Borrower)Issue Date;
(2) [Reserved]this Indenture, the Notes, the Guarantees and the Collateral Documents;
(3) encumbrances applicable law, rule, regulation or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoingorder;
(4) any instrument governing Indebtedness or Capital Stock or other agreement of a Person acquired by the Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock or other agreement was incurred, issued or entered into, as applicable, in connection with or in contemplation of such acquisition), which encumbrance or restriction pursuant to an agreement or instrument of a Person or relating is not applicable to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which (i) such Person was acquired by properties or merged, consolidated or otherwise combined with or into the Borrower or assets of any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each casePerson, other than Capital Stock or Indebtedness Incurred as consideration inthe Person, or to provide all the property or any portion assets of the funds utilized to consummatePerson, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such dateso acquired; provided that, for in the purposes case of Indebtedness, such Indebtedness was permitted by the terms of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall Indenture to be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Companyincurred;
(5) customary non-assignment provisions or transfer or subletting restrictions in leases, sub-leases, easements, contracts, licenses, sub-licenses, conveyance or contract for any encumbrance property or restriction pursuant asset;
(6) obligations applicable to an property acquired in the ordinary course of business, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary and Capital Lease Obligations that restrict the transfer of the property purchased or leased;
(7) any agreement for the sale or instrument effecting other disposition of a refundingRestricted Subsidiary (including the Capital Stock or all or substantially all of the property or assets of that Restricted Subsidiary) that restricts distributions or transfer by that Restricted Subsidiary pending the sale or other disposition (which limitation, replacement in the case of a sale or refinancing disposition of Indebtedness Incurred pursuant all or substantially all property or assets, is applicable only to the property or assets that are the subject of such agreement);
(8) Permitted Refinancing Indebtedness;
(9) Liens permitted to be incurred under Section 3.6 or existing by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Issuer or any of its Restricted Subsidiaries not otherwise prohibited by this Indenture;
(10) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, limited liability company organizational documents and other similar agreements, which limitation is applicable only to the property or assets that otherwise extendsare the subject of such agreements;
(11) contracts with customers or suppliers or leases with lessors entered into in the ordinary course of business that impose customary restrictions on cash, renewsCash Equivalents, refundsmarketable securities, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to deposits or net worth;
(12) agreements governing Indebtedness or Capital Stock of Non-Guarantor Restricted Subsidiaries incurred in compliance with Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5)3.2; provided, however, provided that the Issuer determines in good faith that such encumbrances and restrictions will not cause the Issuer to not have the funds necessary to pay the principal of or interest on the Notes;
(13) agreements governing Hedging Obligations incurred in the ordinary course of business and permitted to be incurred under Section 3.2; provided that the Issuer determines in good faith that such encumbrances and restrictions (x) will not cause the Issuer to not have the funds necessary to pay the principal of or interest on the Notes and (y) such restrictions are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions applicable to such Restricted Subsidiary than those contained in the agreements covered by clauses (1) or (2) of this Section 3.4(b);
(14) any instrument governing any Indebtedness or Capital Stock of any Unrestricted Subsidiary as in effect on the date, if any, that such agreement Unrestricted Subsidiary is redesignated as a Restricted Subsidiary; provided that such encumbrance or instrument are no less favorable in restriction is not applicable to any material respect Person, or to the Lenders taken as a whole property or assets of any Person, other than such redesignated Restricted Subsidiary and its Subsidiaries and Affiliates (immediately prior to such redesignation) and its properties and assets;
(15) restrictions in effect on the Issue Date that are contained in charter documents or shareholder agreements relating to any Restricted Subsidiary of the Issuer;
(16) agreements governing other Indebtedness or Capital Stock permitted to be incurred under Section 3.2; provided that the encumbrances and restrictions contained in any such agreement are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Initial Agreement agreements covered by clauses (1) or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower2) of this Section 3.4(b);
(617) 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 restrictions on cash or other contract;
(b) contained in mortgagesdeposits or net worth, 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 which encumbrances or restrictions restrict the transfer of the property are imposed by customers or assets subject to such mortgagessuppliers or required by insurance, pledges surety 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 Agreementbonding companies, 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 under contracts 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;
(1118) any encumbrance or restriction arising in the ordinary course of business, not relating to any Indebtedness, that does not, individually or in the aggregate, materially detract from the value of the property of the Issuer or any of its Restricted Subsidiaries, taken as whole, or adversely affect the Issuer’s ability to make principal and interest payments on cash the Notes or the Existing Notes, in each case, as determined in good faith by a responsible financial or accounting officer of the Issuer;
(19) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Issuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(20) [Reserved];
(21) customary provisions in joint venture agreements and other deposits or net worth imposed by customers under similar agreements applicable to joint ventures entered into in the ordinary course of business;
(1222) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements[Reserved];
(1323) any encumbrance restrictions arising or restriction arising pursuant agreed to an agreement or instrument in the ordinary course of business, not relating to any Indebtedness permitted to be Incurred subsequent Indebtedness, and that do not, individually or in the aggregate (x) detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material 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 Issuer or any Loan Document Restricted Subsidiary or (y) materially affect the Issuer’s ability to make future principal or interest payments on the Effective DateNotes, or (ii) is customary in comparable financings (each case, as determined in good faith by the BorrowerIssuer; and
(24) arising under any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of an agreement or arrangement referred to in clauses (1), (2), (4), (6), (8), (12), (13), (14), (16), (18) and where, in the case (20) through (23) of clause (iithis Section 3.4(b), the Borrower determines at the time of issuance of such Indebtedness ; provided that such encumbrances amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or restrictions (x) will refinancing is not adversely affectmaterially more restrictive, as determined in any material respectgood faith by a responsible financial or accounting officer of the Issuer, the Borrower’s ability with respect to make principal or interest payments under the Loan Documents as and when they become due or (y) such encumbrances and other restrictions apply only if taken as a default occurs in respect of a payment or financial covenant relating whole than those prior to such Indebtedness;
(14) any encumbrance amendment, modification, restatement, renewal, increase, supplement, refunding, replacement 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 4.06refinancing.
Appears in 1 contract
Sources: Indenture (MICROSTRATEGY Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer will not, and will not permit any of its Restricted Subsidiaries 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 to the Borrower Issuer or any a Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the Borrower or any Restricted Subsidiary;
Issuer, (2ii) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(3iii) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction pursuant to any a Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of such agreementsIssue Date; 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement or instrument of a Person or relating to any Indebtedness or Capital Stock Incurred or Indebtedness of a Person, entered into issued by such Restricted Subsidiary on or before prior to the date on which (i) such Person Restricted Subsidiary was acquired by the Issuer or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Indebtedness or Capital Stock Incurred or Indebtedness Incurred issued as consideration infor, 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 acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower or any a Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower 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 Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (1) or (2) of this Section 4.07(b)(44.6 or contained in any amendment to an agreement referred to in clause (1) or (2) of this Section 4.07(b)(5)4.6; 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 Lenders taken as a whole Noteholders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (predecessor agreements as determined in good faith by the BorrowerBoard of Directors of the Issuer; (4) in the case of clause (iii);
(6) , any encumbrance or restriction:
(a) restriction 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, other contract or the assignment or transfer of any such lease, license or other such contract;
; (b5) in the case of clause (iii), contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement to the extent such encumbrances encumbrance or restrictions restrict the transfer of the property or assets subject to such security agreements or 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;
(76) 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 1 contract
Sources: Indenture (Spectrasite Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries 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) to pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Borrower Issuer or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Issuer, (2b) to make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(3c) sell, lease or to transfer any of its property or assets to the Borrower or any Restricted SubsidiaryIssuer, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.except
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the Issue Date (including the Credit Agreement and Existing Notes);
(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 a Person, entered into Incurred by such Restricted Subsidiary on or before prior to the date on which (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary or was acquired by the Issuer (in each case, 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryIssuer) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any such encumbrance or restriction consisting of customary non-assignment or subletting provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(iv) restrictions contained in security agreements or mortgages securing Indebtedness, of the Issuer or a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements or mortgages or related to any Lien permitted under the Indenture;
(v) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or any assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(vi) any encumbrance or restriction pursuant to an agreement entered into after the Issue Date governing Indebtedness Incurred in compliance with Section 4.09; provided, however, that the encumbrances and restrictions with respect to any Restricted Subsidiary contained in any such agreement are no more restrictive, taken as a whole, than the encumbrances and restrictions with respect to such Restricted Subsidiary pursuant to the agreements in effect on the Issue Date;
(vii) any encumbrance or instrument restriction pursuant to an agreement with a governmental entity providing for developmental financing on terms which are more favorable (at the time such agreement is entered into) than those available from third party financing sources;
(viii) with respect to a Securitization Subsidiary, an agreement relating to Indebtedness of a Securitization Subsidiary which is permitted under Section 4.09 or pursuant to an agreement relating to a Permitted Units Financing by a Securitization Subsidiary;
(ix) any encumbrance or restriction pursuant to this Indenture, the Notes and the Guarantees;
(x) any encumbrance or restriction pursuant to applicable law or any rule, regulation or order of a governmental authority;
(xi) any encumbrance or restriction pursuant to purchase money obligations for any property acquired in the ordinary course of business that impose restrictions on such property (but no other property of the Issuer or a Restricted Subsidiary) of the nature described in clause (c) of this Section 4.10;
(xii) provisions with respect to the disposition or distribution of assets or property or the transfer of ownership interests in joint venture agreements, partnership, limited liability and other similar agreements;
(xiii) any encumbrance or restriction pursuant to an agreement entered into after the Issue Date governing Indebtedness Incurred by a Restricted Subsidiary that is not organized in a jurisdiction that is the United States, any state thereof or the District of Columbia in reliance upon, and in compliance with, clauses (9) and (16) of Section 4.09;
(xiv) non-assignment provisions of any contract or any lease entered into in the ordinary course of business;
(xv) restrictions on cash or other deposits or net worth imposed by suppliers or landlords under contracts entered into in the ordinary course of business; or
(xvi) any encumbrance or restriction pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1)clauses (i) to (xv) above, Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5)to the extent applicable; 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 Lenders more restrictive, 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 Borrower);
(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 4.06agreements.
Appears in 1 contract
Sources: Indenture (Williams Scotsman Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer will not, and will not permit any of its Restricted Subsidiaries 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 to the Borrower Issuer or any a Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the Borrower or any Restricted Subsidiary;
Issuer, (2ii) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(3iii) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction pursuant to any a Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of such agreementsIssue Date; 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement or instrument of a Person or relating to any Indebtedness or Capital Stock Incurred or Indebtedness of a Person, entered into issued by such Restricted Subsidiary on or before prior to the date on which (i) such Person Restricted Subsidiary was acquired by the Issuer or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Indebtedness or Capital Stock Incurred or Indebtedness Incurred issued as consideration infor, 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 acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower or any a Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 4.06.39 35
Appears in 1 contract
Sources: Indenture (Spectrasite Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restriction.advances); or
(b3) Section 4.07(atransfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The provisions of the preceding paragraph will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction pursuant to an agreement in effect at or instrument entered into on the date of this Indenture, including this Indenture, the Securities, the Exchange Securities, the Subsidiary Guarantees 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 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 (i) such Person Restricted Subsidiary was acquired by the Company or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into in contemplation of the Borrower or any Restricted Subsidiarytransaction) and outstanding on such date; provided thatprovided, for that any such encumbrance or restriction shall not extend to any assets or property of the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any other Restricted Subsidiary when such Person becomes other than the Successor Companyassets and property so acquired;
(5iii) any encumbrance or restriction with respect to a Restricted Subsidiary 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, to an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (i) or Section 4.07(b)(4(ii) of this paragraph or this Section 4.07(b)(5) clause (an “Initial Agreement”iii) or contained in any amendment, supplement restatement, modification, renewal, supplement, refunding, replacement or other modification to refinancing of an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (i) or Section 4.07(b)(4(ii) of this paragraph or this Section 4.07(b)(5clause (iii); 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 Lenders respect, taken as a whole 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 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 Borrower)whichever is applicable;
(6iv) in the case of clause (3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Agreement or Indenture securing Indebtedness of the Borrower 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 Borrower Company or any Restricted Subsidiary; or
(d) pursuant to the terms of any license, authorization, concession or permit;
(7a) any encumbrance or restriction pursuant to Purchase Money purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations and Capitalized Synthetic Lease Obligations permitted under this AgreementIndenture, 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 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 ventureacquired;
(8) vi) any encumbrance Purchase Money Note or restriction other Indebtedness or contractual requirements Incurred 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 Qualified Receivables Transaction relating exclusively to a Person Receivables Entity that, in the good faith determination of all or substantially all the Capital Stock or assets Board of Directors, are necessary to effect such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionQualified Receivables Transaction;
(9vii) any customary provisions in leases, licenses, joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements and instruments entered into in the ordinary course of business;
(10viii) restrictions on cash or other deposits or net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license regulation or order, or required by any regulatory authority or stock exchange;
(11x) any encumbrance encumbrances or restriction on cash restrictions contained in indentures or other deposits debt agreements Incurred or net worth imposed Preferred Stock issued by customers under agreements Restricted Subsidiaries subsequent to the Issue Date and permitted pursuant to 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);
(xi) customary non-assignment provisions in contracts, leases and licenses entered into in the ordinary course of business;; and
(12xii) any encumbrance provisions limiting the disposition or restriction pursuant to Currency Agreementsdistribution of assets or property in asset sale 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 sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the Effective Date pursuant to Section 4.04 if assets that are 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 subject 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 4.06agreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Symmetry shall not, and will shall not permit any of its the Restricted Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any of the Restricted Subsidiary to:
Subsidiaries to (1a) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Borrower Symmetry or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Symmetry or any Restricted Subsidiary;
Subsidiary (2including Indebtedness under the Intercompany Notes), (b) make any loans or advances to the Borrower Symmetry or any Restricted Subsidiary; or
Subsidiary or (3c) sell, lease or transfer any of its property or assets to the Borrower Symmetry 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 clauses (a), (b) and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrowerc);,
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4A) any encumbrance or restriction pursuant to an agreement in effect or instrument of entered into on the Issue Date, and any encumbrance or restriction pursuant to the Security Documents or security documents entered into pursuant to the Credit Agreement (as the Credit Agreement is in effect on the Issue Date);
(B) any encumbrance or restriction with respect to Second-Priority Assets pursuant to a Person security agreement, pledge agreement or other similar or related document in connection with any Credit Agreement Obligation Incurred after the Issue Date;
(C) 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 prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Symmetry (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiarySymmetry) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5D) any encumbrance or restriction pursuant to contained in an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1clause (A), Section 4.07(b)(3(B) or (C) of clause (1) of this Section 4.07(b)(44.05 or this clause (D) or contained in any amendment to an agreement referred to in clause (A), (B) or (C) of clause (1) of this Section 4.07(b)(54.05 or this clause (D); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument amendment (i) are no less favorable in any material respect to the Lenders more restrictive, taken as a whole whole, than the encumbrances and restrictions contained in such predecessor agreement and (ii) may restrict (x) the Initial Agreement ability of Novamerican Steel to pay Indebtedness owed to Symmetry, the Company or Initial Agreements any Subsidiary Guarantor or (y) the ability of Novamerican Steel to which such refinancing or amendmenttransfer any Intercompany Note Assets, supplement or other modification relates in the case of each of clauses (as determined in good faith by x) and (y), only to the Borrower)extent the terms of the Indebtedness being Refinanced contained a similar restriction;
(6E) 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;
(9F) customary provisions in leasesany encumbrance or restriction pursuant to applicable law, licensesrule, joint venture agreements and regulation or order;
(G) restrictions on cash, cash equivalents, Temporary Cash Investments or other similar agreements and instruments deposits or net worth imposed under contracts entered into the ordinary course of business, including such restrictions imposed by customers or insurance, surety or bonding companies;
(H) any encumbrance or restriction with respect to a Foreign Restricted Subsidiary entered into the ordinary course of business or pursuant to the terms of Indebtedness that was Incurred by such Foreign Restricted Subsidiary in compliance with the terms of this Indenture; provided that, in the case of Novamerican Steel, such encumbrance or restriction does not restrict its ability to pay Indebtedness owed to Symmetry, the Company or any Subsidiary Guarantor;
(I) provisions contained in any license, permit or other accreditation with a regulatory authority entered into the ordinary course of business;
(10J) encumbrances provisions in agreements or restrictions arising instruments which prohibit the payment or existing by reason making of applicable law dividends or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchangeother distributions other than on a pro rata basis;
(11K) any encumbrance customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or restriction on cash similar entity or other deposits or net worth imposed by customers under agreements the equity interests therein) entered into in the ordinary course of business;; and
(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
(15L) any encumbrance or restriction existing under or by reason of Indebtedness or other contractual requirements of a Receivables Entity or any Lien permitted under Section 4.06Standard Securitization Undertaking, in each case in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity and Receivables and Related Assets;
(2) with respect to clause (c) only,
(A) any encumbrance or restriction consisting of customary provisions in leases governing leasehold interests or licenses of intellectual or other property to the extent such provisions restrict the transfer or use of the lease or license, as applicable, or the property leased or licensed, as applicable, thereunder; and
(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.
Appears in 1 contract
Sources: Indenture (Novamerican Steel Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or 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 Issuer or any of its Restricted Subsidiary 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 Borrower Issuer or any of its Restricted SubsidiarySubsidiaries;
(2) make any loans or advances to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries; or
(3) sell, lease or otherwise transfer any of its property properties or assets to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries. However, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) preceding restrictions will not prohibitapply to encumbrances or restrictions existing under or by reason of:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, . agreements as in effect at or entered into on the Effective Date Issue Date, including agreements governing Existing Indebtedness and Credit Facilities as in effect or entered into on the Issue Date, and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of such those agreements; provided that the amendments, modifications, restatements, modificationsrenewals, renewalsincreases, 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 Effective Date (as determined in good faith Issue Date;
2. this Indenture, the Notes, the Note Guarantees and the Notes Collateral Documents;
3. applicable law, rule, regulation or order;
4. any instrument governing Indebtedness or Capital Stock or other agreement of a Person acquired by the Borrower);
Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (2) [Reserved];
(3) encumbrances except to the extent such Indebtedness or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements Capital Stock or other documents related to the foregoing;
(4) any agreement was incurred, issued or entered into, as applicable, in connection with or in contemplation of such acquisition), which encumbrance or restriction pursuant to an agreement or instrument of a Person or relating is not applicable to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which (i) such Person was acquired by properties or merged, consolidated or otherwise combined with or into the Borrower or assets of any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each casePerson, other than Capital Stock or Indebtedness Incurred as consideration inthe Person, or to provide all the property or any portion assets of the funds utilized to consummatePerson, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such dateso acquired; provided that, for in the purposes case of Indebtedness, such Indebtedness was permitted by the terms of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall Indenture to be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Companyincurred;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(6) any encumbrance or restriction:
(a) that restricts in a . customary manner the subletting, non-assignment provisions or transfer of or subletting restrictions in leases, sub- leases, easements, contracts, licenses, sub-licenses, conveyance or contract for 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 contractasset;
(b) contained 6. obligations applicable to property acquired in mortgagesthe ordinary course of business, pledges or other purchase money obligations, security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement to the extent such encumbrances or restrictions and Capital Lease Obligations that restrict the transfer of the property purchased or assets subject to such mortgages, pledges leased;
7. any agreement for the sale or other security agreements;
(c) pursuant to customary provisions restricting dispositions disposition 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 (including the Capital Stock or any all or substantially all of its the property or assetsassets of that Restricted Subsidiary) imposed pursuant to an agreement entered into for that restricts distributions or transfer by that Restricted Subsidiary pending the direct sale or indirect other disposition (which limitation, in the case of a sale or disposition to a Person of all or substantially all the Capital Stock property or assets of such Restricted Subsidiary (or assets, is applicable only to the property or assets that are the subject to such restriction) pending the closing of such sale or dispositionagreement);
(8. Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
9) customary . Liens permitted to be incurred under Section 3.6 or existing by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Issuer or any of its Restricted Subsidiaries not otherwise prohibited by this Indenture;
10. provisions limiting the disposition or distribution of assets or property in leases, licenses, joint venture agreements agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, limited liability company organizational documents and other similar agreements and instruments agreements, which limitation is applicable only to the property or assets that are the subject of such agreements;
11. contracts with customers or suppliers or leases with lessors entered into in the ordinary course of business;
(10) encumbrances or business that impose customary restrictions arising or existing by reason of applicable law or any applicable ruleon cash, regulationCash Equivalents, governmental license or ordermarketable securities, 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 worth;
12. agreements entered into governing Indebtedness or Capital Stock of Non-Guarantor Restricted Subsidiaries incurred in compliance with Section 3.2; provided that the Issuer determines in good faith that such encumbrances and restrictions (x) will not cause the Issuer to not have the funds necessary to pay the principal of or interest on the Notes and (y) are not materially more restrictive, taken as a whole, than is customary in comparable financings;
13. agreements governing Hedging Obligations incurred in the ordinary course of businessbusiness and permitted to be incurred under Section 3.2; provided that the Issuer determines in good faith that such encumbrances and restrictions (x) will not cause the Issuer to not have the funds necessary to pay the principal of or interest on the Notes and (y) such restrictions are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions applicable to such Restricted Subsidiary than those contained in the agreements covered by clauses (1) or (2) of this paragraph;
(12) 14. any instrument governing any Indebtedness or Capital Stock of any Unrestricted Subsidiary as in effect on the date, if any, that such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary; provided that such encumbrance or restriction pursuant is not applicable to Currency Agreementsany Person, Interest Rate Agreements or Commodity Hedging Agreementsto the property or assets of any Person, other than such redesignated Restricted Subsidiary and its Subsidiaries and Affiliates (immediately prior to such redesignation) and its properties and assets;
(13) any encumbrance 15. restrictions in effect on the Issue Date that are contained in charter documents or restriction arising pursuant to an agreement or instrument shareholder agreements relating to any Restricted Subsidiary of the Issuer;
16. agreements governing other Indebtedness or Capital Stock permitted to be Incurred subsequent to the Effective Date pursuant to incurred under Section 4.04 if 3.2; provided that the encumbrances and restrictions contained in any such agreement or instrument are not materially more restrictive, taken as a whole are not materially less favorable whole, with respect to the Lenders such dividend and other payment restrictions than (ia) the encumbrances and restrictions those contained in this Agreement or any Loan Document on the Effective Date, agreements covered by clauses (1) or (ii2) of this paragraph or (b) as is customary in comparable financings (as determined in good faith by a responsible financial or accounting officer of the Borrower) Issuer), and where, in the case of this sub-clause (iib), the Borrower Issuer determines at the time of incurrence of such Indebtedness or issuance of such Indebtedness Preferred Stock that such encumbrances or restrictions would not materially impair the Issuer’s ability to make payments of interest, principal or as otherwise required under the Notes when due (x) will not adversely affectas determined in good faith by a responsible financial or accounting officer of the Issuer);
17. restrictions on cash or other deposits or net worth, which encumbrances or restrictions are imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under contracts entered into in the ordinary course of business;
18. any material respectencumbrance or restriction arising in the ordinary course of business, not relating to any Indebtedness, that does not, individually or in the Borroweraggregate, materially detract from the value of the property of Issuer or any of its Restricted Subsidiaries, taken as whole, or adversely affect the Issuer’s ability to make principal or and interest payments under on the Loan Documents Notes, in each case, as and when they become due determined in good faith by a responsible financial or (y) such encumbrances and restrictions apply only if a default occurs in respect accounting officer of a payment or financial covenant relating to such Indebtednessthe Issuer;
(14) any encumbrance or 19. restrictions arising created in connection with any Purchase Money Note, other Indebtedness Qualified Securitization Financing or a Qualified Receivables Financing Facility that, in the good faith determination of an Officer or the Board of Directors of the BorrowerIssuer, are necessary or advisable to effect such Qualified Securitization Facility or Receivables FinancingFacility; orand
20. arising under any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of an agreement or arrangement referred to in clauses (151), (2), (4), (6), (8), (12), (13), (14), (16) any encumbrance and (18) above; provided that such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or restriction existing refinancing is not materially more restrictive, as determined in good faith by reason a responsible financial or accounting officer of any Lien permitted under Section 4.06the Issuer, 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 refinancing.
Appears in 1 contract
Sources: Indenture (CPI Card Group Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries 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) to pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Borrower Issuer or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Issuer, (2b) to make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(3c) sell, lease or to transfer any of its property or assets to the Borrower or any Restricted SubsidiaryIssuer, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.except
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the Issue Date (including the Credit Agreement, the Security Documents and the Existing Notes Indenture);
(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 a Person, entered into Incurred by such Restricted Subsidiary on or before prior to the date on which (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary or was acquired by the Issuer (in each case, 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryIssuer) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (i) or (ii) of this Section 4.07(b)(44.10 or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this Section 4.07(b)(54.10 or this clause (iii); providedPROVIDED, howeverHOWEVER, 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 Lenders more restrictive, taken as a whole 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 amendment, supplement or other modification relates (as determined in good faith by the Borrower)agreements;
(6iv) any such encumbrance or restriction:
(a) that restricts in a restriction consisting of customary manner the subletting, non-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 subletting provisions 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 leases governing leasehold interests to the extent such encumbrances provisions restrict the transfer of the lease or the property leased thereunder;
(v) in the case of clause (iii) above, restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property or assets subject to such security agreements or 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;
(7vi) 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 any 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;
(12vii) any encumbrance or restriction pursuant to Currency Agreementsan agreement entered into after the Issue Date governing Indebtedness Incurred by a Restricted Subsidiary in compliance with Section 4.09; PROVIDED, Interest Rate Agreements or Commodity Hedging AgreementsHOWEVER, that the encumbrances and restrictions with respect to any Restricted Subsidiary contained in any such agreement are no more restrictive, taken as a whole, than the encumbrances and restrictions with respect to such Restricted Subsidiary in the Credit Agreement on the Issue Date;
(13viii) 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 with a whole governmental entity providing for developmental financing on terms which are not materially less more 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 (xagreement is entered into) 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 Indebtednessthan those available from third party financing sources;
(14ix) any encumbrance with respect to a Securitization Subsidiary, an agreement relating to Indebtedness of a Securitization Subsidiary which is permitted under Section 4.09 or restrictions arising in connection with any Purchase Money Note, other Indebtedness or pursuant to an agreement relating to a Qualified Receivables Permitted Units 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; orby a Securitization Subsidiary;
(15x) any encumbrance or restriction existing pursuant to this Indenture;
(xi) any encumbrance or restriction pursuant to applicable law or any rule, regulation or order of a governmental authority;
(xii) any encumbrance or restriction pursuant to purchase money obligations for any property acquired in the ordinary course of business that impose restrictions on such property (but no other property of the Issuer or a Restricted Subsidiary) of the nature described in clause (c) of this Section 4.10;
(xiii) provisions with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements; or
(xiv) any encumbrance or restriction pursuant to an agreement entered into after the Issue Date governing Indebtedness Incurred by reason a Restricted Subsidiary that is not organized in a jurisdiction that is the United States, any state thereof or the District of any Lien permitted under Columbia in reliance upon, and in compliance with, clause (xv) of Section 4.064.09.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 Borrower Company or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Company, (2b) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets to the Borrower or any Restricted SubsidiaryCompany, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into existing on the Effective 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 Effective Date (as determined in good faith by the Borrower)Issue Date;
(2) [Reserved]any encumbrance or restriction contained in the Credit Agreement;
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating with respect to any Capital Stock or Indebtedness of a Person, entered into Person existing on or before prior to the date on which (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower 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 or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(54) 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 replaces any encumbrances or instrument restrictions referred to in Section 4.07(b)(1clause (1), Section 4.07(b)(3(2) or (3) of this Section 4.07(b)(4) 4.05 or this Section 4.07(b)(5) clause (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(54); provided, however, that the encumbrances and restrictions with respect to in such Restricted Subsidiary contained in any such agreement extensions, renewals, refinancings or instrument replacements are no less favorable in any material respect to the Lenders favorable, taken as a whole whole, to the Noteholders than the encumbrances and restrictions contained in being extended, renewed, refinanced or replaced;
(5) any encumbrance or restriction imposed pursuant to an agreement entered into for the Initial Agreement sale or Initial Agreements disposition of assets permitted by Section 4.06; provided, however, that such encumbrance or restriction applies only to which the assets that are the subject of such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower)agreement;
(6) any encumbrance or restriction:
(a) that restricts provisions 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 for Permitted Joint Ventures with respect to the extent disposition or distribution of assets or property of 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 permitPermitted Joint Venture;
(7) any encumbrance or restriction pursuant consisting of customary nonassignment provisions in leases governing leasehold interests 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 extent such provisions restrict the transfer of the assets of lease or the joint ventureproperty leased thereunder;
(8) any encumbrance or restriction with respect to a Restricted Subsidiary (existing under or any by reason 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 dispositionapplicable law;
(9) customary provisions any encumbrance or restriction contained in leases, licenses, joint venture security agreements and other similar 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 and instruments entered into in the ordinary course of business;or mortgages; and
(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 Liens securing Indebtedness otherwise permitted to be Incurred subsequent under Section 4.11 that limit the right of the debtor to dispose of 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 assets subject 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 4.06Liens.
Appears in 1 contract
Sources: Indenture (Wolverine Tube Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will UCAR International shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower UCAR International or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to UCAR International or the Borrower or any Restricted Subsidiary;
Company (2including the Intercompany Note Obligations), (b) make any loans or advances to UCAR International or the Borrower Company or any Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets to UCAR International or the Borrower or any Restricted SubsidiaryCompany, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 clauses (a), (b) and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrowerc);,
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the Issue Date (including the Credit Agreement as in effect on the Issue Date);
(ii) any encumbrance or restriction with respect to a Person Restricted Subsidiary pursuant to an agreement in effect or relating to any Capital Stock or Indebtedness of a Person, entered into on or before prior to the date on which (i) such Person Restricted Subsidiary was acquired by UCAR International or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary or, in the case of a Restricted Subsidiary formed to acquire a business, the date on which such business was acquired by such Restricted Subsidiary (in each case, other than Capital Stock or Indebtedness Incurred an agreement entered into, in connection with, 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 Borrower UCAR International or a Restricted Subsidiary or such business was merged, consolidated or otherwise combined with or into the Borrower or any acquired by such Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any encumbrance or restriction pursuant to contained in an agreement or instrument effecting a refundingrefinancing, replacement substitution, novation, extension, renewal, refund, repayment, prepayment, redemption, defeasement or refinancing of Indebtedness Incurred pursuant toretirement, or that otherwise extendsissuance of exchange or replacement Indebtedness, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification pursuant to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(34.05(1)(i) or Section 4.07(b)(4(ii) or in this clause (iii) or contained in any amendment to an agreement referred to in Section 4.07(b)(54.05(1)(i) or (ii) or in this clause (iii); providedPROVIDED, howeverHOWEVER, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument amendment are no less favorable in any material respect to the Lenders 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 amendment, supplement or other modification relates (as determined in good faith by the Borrower);predecessor agreement; and
(6iv) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary, pending the closing of such sale or disposition; and
(2) with respect to clause (c) only,
(i) any such encumbrance or restriction:
restriction (aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance, contract or similar contract, property or the assignment asset or transfer of any (B) that is included in a lease, license license, installment purchase or other contract;
(b) contained in mortgages, pledges sale contract or other security agreements permitted under this Agreement or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement similar agreement to the extent such encumbrances or restrictions limit the transfer of the property or asset subject to such lease, license, contract or similar agreement; and
(ii) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property or assets subject to such security agreements or 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 1 contract
Sources: Indenture (Ucar International Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will shall not, and will shall not permit any of its Restricted Subsidiaries 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) (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Borrower or any of the Restricted Subsidiary Subsidiaries 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 Borrower or any Restricted Subsidiary;
Borrower, (2B) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3C) sell, lease or transfer any of its property properties or assets to the Borrower or any Restricted SubsidiaryBorrower, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1i) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 clauses (A), (B) and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the BorrowerC);,
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4a) 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 (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor CompanyClosing Date;
(5b) [reserved];
(c) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement modification, restatement or other modification to renewal of an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(46.04(i)(a) or this Section 4.07(b)(5clause (c); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no amendment are, as determined by an Officer in good faith, not materially less favorable in any material respect to the Lenders 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 amendment, supplement or other modification relates (as determined in good faith by the Borrower);
(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 predecessor 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 Equity Interests or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(9e) customary provisions in leases, licenses, joint venture agreements agreements, asset sale agreements, stock sale agreements, limited liability company organizational documents and other similar agreements and instruments agreements;
(f) restrictions on cash, Cash Equivalents, marketable securities, investment grade securities or other deposits or net worth imposed by customers or lessors (including governmental entities) under contracts or leases entered into in the ordinary course of business;
(10g) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rulethis Agreement, regulation, governmental license or order, or required by any regulatory authority or stock exchangethe Subsidiary Guarantees and the Security Documents;
(11h) applicable laws, rules, regulations and orders;
(i) customary restrictions in Indebtedness Incurred pursuant to Section 6.02(b)(i); provided, however, that such restrictions are not more restrictive than those contained in this Agreement or the Security Documents; and
(ii) with respect to clause (C) only,
(a) any encumbrance or restriction on cash consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of businessproperty leased thereunder;
(12b) any encumbrance or restriction pursuant contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(13) any the extent such encumbrance or restriction arising pursuant restricts the transfer of the property subject to an agreement such security agreements or instrument relating mortgages; and
(c) agreements with respect to any Purchase Money Indebtedness and Capital Lease Obligations otherwise permitted to be Incurred subsequent to the Effective Date pursuant to Section 4.04 if the encumbrances and hereunder that impose 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, property purchased 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 4.06leased.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (1i) 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 Borrower Company or any a Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the Borrower Company or any a Restricted Subsidiary;
, (2ii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary; or
Subsidiary or (3iii) sell, lease or transfer any of its property or assets to the Borrower Company or any other Restricted Subsidiary, provided that except for such encumbrances or restrictions existing under or by reason of (a) (x) this Indenture, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrumentthe indenture governing the Senior Discount Notes, in each case, case as in effect at or entered into on the Effective Date Issue Date, and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of thereof; provided, however, that any such agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings to or under the Credit Facility or the indenture governing the Senior Discount Notes are not materially more restrictive, when taken as a whole, with respect to such dividend and other payment restrictions restrictions, to the Company or any Restricted Subsidiary than those contained in the Credit Facility or such indenture, as the case may be, (or, if more restrictive, than those agreements on contained in this Indenture) immediately prior to any such amendment, restatement, renewal, replacement or refinancing, or (y) the Effective Date (as determined in good faith by indenture relating to any Public Debt issued after the Borrower);
(2) [Reserved];
(3) date hereof, which encumbrances or restrictions existing under or by reason of (i) any Loan Documentsare not materially more restrictive, (ii) the New Senior Guaranteed Notes Indenture when taken as a whole, with respect to such dividend and the New Senior Guaranteed Notesother payment restrictions, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary than those contained in this Indenture, (b) applicable law, (c) 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument contemplation of such Person acquisition or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing in violation of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5)4.13; provided, however, that the encumbrances and restrictions with respect (1) such restriction is not applicable to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the 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 Borrower);
(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 contractPerson, or the assignment properties or transfer assets of any leasePerson, license or other contract;
than the Acquired Person, and (b2) contained in mortgages, pledges or other security agreements permitted under this Agreement or securing Indebtedness the consolidated net income 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 Acquired Person for any period prior to such mortgagesacquisition shall not be taken into account in determining whether such acquisition was permitted by the terms of this Indenture, 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 customary non-assignment provisions in leases or other agreements entered into the terms ordinary course of any licensebusiness, authorization, concession or permit;
(7e) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement, Indebtedness for property acquired in each case, the ordinary course of business that only 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;
acquired, (8) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assetsf) 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 Subsidiary; provided, however, that are subject such restriction is only applicable to such restriction) pending the closing of Restricted Subsidiary or assets, as applicable, and such sale or disposition;
disposition otherwise is permitted under Section 4.17; provided, further, however, that such restriction or encumbrance shall be effective only for a period from the execution and delivery of such agreement through a termination date not later than 180 days after such execution and delivery, or (9g) Refinancing Indebtedness permitted under this Indenture; provided, however, that the restrictions contained in the agreements governing such Refinancing Indebtedness are no more restrictive in the aggregate than those contained in the agreements governing the Indebtedness being refinanced immediately prior to such refinancing. Notwithstanding the foregoing, neither (a) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments restricting subletting or assignment of any lease entered into in the ordinary course of business;
, nor (10b) encumbrances or restrictions arising or existing by reason Liens permitted under this Indenture, shall in and 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 themselves be considered a restriction on cash the ability of the applicable Restricted Subsidiary to transfer such agreements 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 Agreementsassets, 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 4.06may be.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 to the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any other Restricted Subsidiary;
, (2ii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary; or
Subsidiary or (3iii) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibit; except:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4a) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the 1998 Issue Date, including pursuant to this Indenture, the Revolving Credit Facility and the Senior Secured Notes then in existence; (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 on or before Incurred by such Restricted Subsidiary prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryCompany) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5c) any encumbrance or restriction with respect to a Restricted Subsidiary 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3the preceding clauses (a) or Section 4.07(b)(4(b) or this Section 4.07(b)(5clause (c) or contained in any amendment to an agreement referred to in the preceding clauses (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 in any material respect to the Lenders Holders of the Securities taken as a whole whole, than the original encumbrances and restrictions contained in such agreements; (d) in the Initial Agreement or Initial Agreements to which such refinancing or amendmentcase of clause (iii) of this Section 3.6, supplement or other modification relates (as determined in good faith by the Borrower);
(6) any encumbrance or restriction:
restriction (aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer (B) by virtue of any leasetransfer of, license agreement to transfer, option or other contract;
right with respect to, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (bC) 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 encumbrance or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements;
agreements and (cD) pursuant to customary ordinary course provisions restricting dispositions the assignability of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiarycontracts; or
(d) pursuant to the terms of any license, authorization, concession or permit;
(7e) 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 the Company 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 or such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
; (9f) 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 created in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing Transaction that, in the good faith determination of an Officer or the Board of Directors of the BorrowerDirectors, are necessary or advisable to effect such Qualified Receivables FinancingTransaction; or
provided that such restrictions apply only to such Receivables Entity; and (15g) any encumbrance or restriction existing by reason operation of any Lien permitted under Section 4.06applicable law.
Appears in 1 contract
Sources: Indenture (Smithfield Foods Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (aA) The Borrower Issuer will not, and will not permit any of its Restricted Subsidiaries 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 Borrower Issuer or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Issuer, (2b) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets to the Borrower or any Restricted SubsidiaryIssuer, provided that except:
(xi) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior with respect to dividends or liquidating distributions being paid on common stock and clauses (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiarya), 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.
(b) and (c) of the first sentence of this Section 4.07(a) will not prohibit:4.04(A),
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4a) any encumbrance or restriction pursuant to an agreement of the Issuer or instrument any of its Subsidiaries in effect at or entered into on the Issue Date;
(b) any encumbrance or restriction contained in the terms of any agreement pursuant to which such Indebtedness was issued 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 covenant default contained in such Indebtedness or agreement or (ii) the Issuer determines at the time any such Indebtedness is Incurred (and at the time of any modification of the terms of any such encumbrance or restriction) that any such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes and (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 Board of Directors in good faith);
(c) 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 prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Issuer (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryIssuer) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5d) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1clause (a), Section 4.07(b)(3(b) or (c) of this Section 4.07(b)(44.04(A)(i) or this clause (d) or contained in any amendment to an agreement referred to in clause (a), (b) or (c) of this Section 4.07(b)(54.04(A)(i) or this clause (d); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or instrument amendment are no not materially less favorable in any material respect to the Lenders favorable, taken as a whole whole, to the Noteholders than the encumbrances and restrictions with respect to such Restricted Subsidiary 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 Borrower)predecessor agreements;
(6e) any encumbrance or restriction:restriction pursuant to customary restrictions on, or customary conditions to the payment of dividends or other distributions on, equity interests owned by the Issuer or any Subsidiary in any joint venture or similar enterprise contained in the constitutive documents, including shareholders’ or similar agreements, of such joint venture or enterprise, to the extent encumbrances or restrictions apply solely to the income of such joint venture or similar enterprise;
(f) any encumbrance or restriction pursuant to customary restrictions contained in (i) agreements governing any Non-Recourse Indebtedness or Permitted Co-investments, or (ii) the terms of the relevant partnership agreement, limited liability company operating agreement or other governing document of the entity that is the borrower (or the direct parent of the borrower) under any Non-Recourse Indebtedness or of any Co-investment Vehicle;
(g) any encumbrance or restriction contained in the terms of any agreement governing Indebtedness directly or indirectly secured by real property or other related assets that are customary for real property financing transactions, such as cash collateral accounts or impounds or reserves required for payment of taxes, insurance, security deposits, capital expenditures and repairs, interest and tenant improvements and leasing commissions; and
(h) any encumbrance or restriction pursuant to applicable law; and
(ii) with respect to clause (c) of the first sentence of this Section 4.04(A) only,
(a) that restricts any such encumbrance or restriction consisting of customary nonassignment provisions in a customary manner leases governing leasehold interests or licenses of intellectual property to the subletting, assignment or extent such provisions restrict the transfer of any property or asset that is subject to a lease, license or similar contract, the lease or the assignment property leased or transfer of any lease, license or other contractlicensed thereunder;
(b) restrictions contained in mortgagessecurity agreements, pledges mortgages or other security agreements permitted under this Agreement or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement or any agreement governing Non-Recourse Indebtedness to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements, mortgages or Non-Recourse Indebtedness;
(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 assets subject to any Lien permitted under the assets Indenture imposed by the holder of the joint venturesuch Lien;
(8) d) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) 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 such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;; and
(9e) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into arising or agreed to 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 not relating to any Indebtedness permitted to be Incurred subsequent Indebtedness, and that do not, individually or in the aggregate, detract from the value of the property or assets of the Issuer or any Restricted Subsidiary in a manner material to the Effective Date pursuant to Section 4.04 if the encumbrances Issuer and restrictions contained in any such agreement or instrument its Restricted Subsidiaries, 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 4.06whole.
Appears in 1 contract
Sources: Supplemental Indenture (Kennedy-Wilson Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability 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 to the Borrower or any Restricted Subsidiary Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Borrower Company or any other Restricted Subsidiary;
(2b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets Property to the Borrower 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) . The foregoing limitations will not prohibitapply:
(1) any encumbrance to restrictions or restriction encumbrances existing under or by reason of:
(A) agreements in effect on the Issue Date (including, without limitation, restrictions pursuant to any the Notes, this Indenture, the Subsidiary Guaranties and the Senior Credit Facility or any other agreement or instrumentFacility), in each case, in effect at or entered into on the Effective Date and any amendments, modifications, restatements, renewals, replacements, refundings, refinancings, increases or supplements of those agreements, provided that the encumbrances or restrictions contained in any such amendments, modifications, restatements, renewals, supplementsreplacements, refundings, replacements refinancings, increases or refinancings of such agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, supplements taken as a whole, with respect to such dividend and other payment restrictions are not materially more restrictive than those contained in those agreements on the Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) contained in agreements to which they relate as in place on the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;Issue Date,
(4B) any encumbrance Debt or restriction pursuant to an agreement or instrument Capital Stock of a Person Restricted Subsidiary existing at the time it became a Restricted Subsidiary or relating to any Capital Stock or Indebtedness of a Person, entered into on or before at the date on which (i) such Person was acquired by or merged, consolidated or otherwise combined time it merges with or into the Borrower Company or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any a Restricted Subsidiary if such restriction was not created in connection with an acquisition or in anticipation 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company, and any amendments, modifications, restatements, renewals, replacements, refundings, refinancings, increases or was mergedsupplements of those instruments, consolidated provided that the encumbrances or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or restrictions contained in any amendmentsuch amendments, supplement modifications, restatements, renewals, replacements, refundings, refinancings, increases or other modification supplements, taken as a whole, are not materially more restrictive than the encumbrances or restrictions contained in instruments in effect on the date of acquisition,
(C) the Refinancing of Debt Incurred pursuant to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (1)(A) or Section 4.07(b)(4(B) above or in clause (2)(A) or this Section 4.07(b)(5); provided(B) below, howeverprovided such restrictions are not materially less favorable, 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 Lenders taken as a whole to the holders of Notes than those under the encumbrances and agreement evidencing the Debt so Refinanced,
(D) any applicable law, rule, regulation or order,
(E) Permitted Refinancing Debt, provided that the restrictions contained in the Initial Agreement or Initial Agreements to which agreements governing such refinancing or amendmentPermitted Refinancing Debt, supplement or other modification relates (taken as determined a whole, are not materially more restrictive than those contained in good faith by the Borrower);agreements governing the Debt being refinanced,
(6F) any encumbrance or restriction:
(a) that restricts in a customary manner Liens securing obligations otherwise permitted to be incurred under 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 provisions of the Borrower covenant described above under the caption Section 4.11 or a Restricted Subsidiary permitted under this Agreement to Section 4.16 that limit the extent such encumbrances or restrictions restrict the transfer right of the property or debtor to dispose of the assets subject to such mortgages, pledges or other security agreements;Liens,
(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;
(9G) customary provisions limiting or prohibiting the disposition or distribution of assets or property in leases, licenses, joint venture agreements, asset sale agreements, Sale and Leaseback Transactions, stock sale agreements and other similar agreements and instruments entered into in the ordinary course of business;, which limitation or prohibition is applicable only to the assets that are the subject of such agreements,
(10H) 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 or lessors under contracts or leases entered into in the ordinary course of business, or
(I) arising under Debt or other contractual requirements of a Securitization Entity in connection with a Qualified Securitization Transaction; provided that such restrictions apply only to such Securitization Entity; and
(2) with respect to clause (c) only, to restrictions or encumbrances:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes or the applicable Subsidiary Guaranty pursuant to the covenants described under Section 4.09 and Section 4.11 that limit the right of the debtor to dispose of the Property securing such Debt,
(B) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary, so long as such restrictions relate solely to the Property so acquired and were not created in connection with or in anticipation of such acquisition,
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder,
(D) customary restrictions contained in any asset purchase, stock purchase, merger or other similar agreement, pending the closing of the transaction contemplated thereby, or
(E) customary restrictions contained in joint venture 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 business 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 4.06faith.
Appears in 1 contract
Sources: Indenture (Novelis Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Hanover will not, and will not permit any of its Restricted Subsidiaries 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 Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Hanover or any Restricted Subsidiary;
; (2) make any loans or advances to the Borrower Hanover or any Restricted Subsidiary; or
or (3) sell, lease or transfer any of its property or assets to the Borrower Hanover 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) . The preceding provisions will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of prohibit (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction pursuant to an agreement in effect at or instrument entered into on the date of this Agreement, including, without limitation, this Agreement, the 2001A Participation Agreement 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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Hanover (ii) such agreement or instrument is assumed by the 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by Hanover or in contemplation of the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiarytransaction) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any encumbrance or restriction with respect to a Restricted Subsidiary 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(39.5(i) or Section 4.07(b)(4(ii) or this clause (iii) or contained in any amendment to an agreement referred to in Section 4.07(b)(59.5(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 instrument amendment are no less favorable in any material respect to the Lenders taken as a whole Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in Section 9.5(i) or (ii) on the Initial Agreement Issue Date or Initial Agreements to which the date such refinancing or amendmentRestricted Subsidiary became a Restricted Subsidiary, supplement or other modification relates whichever is applicable; (as determined iv) in good faith by the Borrower);
case of clause (63) of this Section 9.5, any encumbrance or restriction:
restriction (a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
; (b) contained in mortgages, pledges or other security agreements permitted under this Agreement or securing Indebtedness of the Borrower Hanover 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 Borrower Hanover or any Restricted Subsidiary; or
(dv) pursuant to purchase money obligations for property acquired in the terms ordinary course 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, business that impose encumbrances or restrictions of the nature described in clause (3) of this Section 9.5 on the property so acquired acquired; (vi) any Purchase Money Note or any encumbrance other Indebtedness or restriction pursuant contractual requirements incurred with respect to a joint venture agreement that imposes restrictions on Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the transfer good faith determination of the assets Board of the joint venture;
Directors, are necessary to effect such Qualified Receivables Transaction; (8) vii) 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;
; and (9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license regulation 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 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will not, and will not permit any of its Restricted 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 Borrower or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective IssueEffective 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 Effective IssueEffective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 ClosingEffective 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 ClosingEffective 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 1 contract
Sources: Credit Agreement (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries 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) to pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Borrower Issuer or any of its Restricted Subsidiary Subsidiaries or pay any Indebtedness or other obligations owed to the Borrower Issuer or any a Restricted Subsidiary;
, (2B) to make any loans or advances to the Borrower Issuer or any a Restricted Subsidiary; or
Subsidiary or (3C) sell, lease or to transfer any of its property or assets to the Borrower Issuer or any a 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction in an agreement in effect on the Issue Date (including, without limitation, pursuant to any or required by the ABL Credit Agreement, the Senior Secured Notes Indenture, the INMETCO Facility or any other agreement or instrument, in each case, related documents as in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the BorrowerIssue Date);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction with respect to or pursuant to an agreement instrument relating to any Indebtedness or instrument Capital Stock of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into in effect on or before prior to the date on which (i) such Person was acquired by the Issuer or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary of the Issuer (in each case, 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 became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 BorrowerIssuer);
(63) any such encumbrance or restriction:
(a) that restricts restriction consisting of customary nonassignment provisions in a customary manner the sublettingleases, assignment subleases 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 licenses to the extent such encumbrances or restrictions provisions restrict the transfer of the lease or the property or assets subject to such mortgages, pledges or other security agreements;
(c4) pursuant to customary provisions restricting dispositions in the case of real property interests set forth in clause (C) above, 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 related to purchase money obligations or other Obligations described in Section 4.08(b)(6) hereof for property so acquired that in each case impose restrictions of the nature described in clause (C) above 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 ventureacquired;
(8) 5) 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;
(6) any encumbrance or restriction existing under or by reason of applicable law, rule, regulation or order;
(7) any encumbrance or restriction existing under or by reason of any other agreements governing Indebtedness permitted to be Incurred pursuant to Section 4.08 hereof that contains encumbrances and restrictions that are not materially more restrictive with respect to any Restricted Subsidiary than those in effect on the Issue Date under the ABL Credit Agreement (as determined in good faith by the Board of Directors of the Issuer);
(8) Liens permitted to be Incurred under Section 4.13 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(9) customary provisions in leases, licenses, joint venture agreements and restrictions on cash or other similar agreements and instruments deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(10) encumbrances any encumbrance or restrictions arising or existing restriction with respect to a Foreign Subsidiary pursuant to the terms of Indebtedness that was Incurred by reason such Foreign Subsidiary in compliance with the terms of applicable law or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchangethis Indenture;
(11) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in this Indenture, the ordinary course of business;Notes and the Subsidiary Guarantees; and
(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 imposed by any amendments, restatements, modifications, renewals or refinancings (xregardless of whether the principal amount of underlying Indebtedness is increased or decreased) will not adversely affectof the contracts, instruments or obligations referred to in any material respect, the Borrower’s ability to make principal clauses (1) through (11) above; provided that such amendments 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 thatrefinancings are, in the good faith determination judgment of an Officer or the Issuer’s Board of Directors of the BorrowerDirectors, are necessary no more materially restrictive with respect to such encumbrances and restrictions than those prior to such amendment or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06refinancing.
Appears in 1 contract
Sources: Indenture (Horsehead Holding Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 held by the Borrower Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary, including, for the avoidance of doubt, for the purpose of making payments to the Issuer or the Company with respect to or in connection with the Notes (including, but not limited to, refinancing, amending, extending, repaying, purchasing, investing in and/or pledging assets in support of any Notes and/or paying any principal amounts, interest amounts, premia, catch-up payments, make-whole amounts, fees, underwriting discounts, costs, commissions, hedging, tax, break costs, indemnification obligations or other expenses (including any consent fees) in connection therewith); 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 Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 4.07(a4.05
(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or (A) the RCF Finance Documents and the Piraeus Term Loan Finance Documents, in each case as of the Issue Date, (B) any other agreement or instrument, in each case, in effect at or entered into on the Effective Issue Date after giving pro forma effect to the Transactions, including, without limitation, this Indenture, the New Money Notes Indenture, the Notes and the New Money Notes, the Intercreditor Agreement or (C) any amendments, restatements, modifications, renewals, supplements, refundings, replacements Security Documents 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 Effective Date (as determined in good faith by the Borrower)Additional Intercreditor Agreement;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 Borrower Company or any Restricted Subsidiary, (ii) or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower 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 Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted SubsidiarySubsidiary entered into or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower 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 replacesrefinances, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (1) or (2) of this Section 4.07(b)(44.05(b) or this Section 4.07(b)(5clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (1) or (2) of this Section 4.07(b)(44.05(b) or this Section 4.07(b)(5clause (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 Lenders 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 BorrowerBoard of Directors of the Issuer);
(64) any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(bB) contained in mortgages, pledges pledges, charges or other security agreements permitted under not prohibited by this Agreement Indenture or securing Indebtedness or other obligations of the Borrower Company or a Restricted Subsidiary permitted under not prohibited by this Agreement Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges pledges, charges or other security agreements;; or
(cC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary; or
(d) pursuant to the terms of any license, authorization, concession or permit;
(75) (x) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions on the property so acquired or (y) any encumbrance or restriction pursuant to a joint venture agreement venture, co-investment or similar agreements (and any agreements ancillary or consequential thereto) that imposes impose restrictions on the transfer of the rights, property or assets of the joint venture, co-investment vehicle or other entity the subject of any such agreement(s);
(8) 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;
(97) customary provisions in leases, licenses, joint venture agreements agreements, co-investment and other similar or related agreements and instruments instruments, in each case, entered into in the ordinary course of businessbusiness or where the Issuer determines that such encumbrances or restrictions will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes;
(10) 8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license regulation or order, or required by any regulatory authority or stock exchangeauthority;
(119) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers, or as required by insurance, surety or bonding companies or indemnities, in each case, under agreements or policies entered into in the ordinary course of business;
(1210) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(1311) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Effective Issue Date pursuant to the provisions of Section 4.04 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 Lenders Holders than (i) the encumbrances and restrictions contained in this Indenture, the New Notes Indenture, the RCF Facility Agreement or as of the Issue Date, the Piraeus Term Loan Facility Agreement as of the Issue Date, the Intercreditor Agreement and any Loan Document Additional Intercreditor Agreement, together with the security documents associated therewith as in effect on the Effective Date, or (ii) is customary in comparable financings (as determined in good faith by Issue Date after giving pro forma effect to 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 FinancingTransactions; or
(1512) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.064.09.
Appears in 1 contract
Sources: Indenture (Intrum ZRT)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will On and after the Escrow Release Date, the Issuer shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower Issuer or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
, (2b) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
Subsidiary or (3c) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary, except:
(i) with respect to clauses (a), (b) and (c):
(A) any encumbrance or restriction pursuant to (i) an agreement in effect at or entered into on the Escrow Release Date (including the Credit Agreement in effect on the Escrow Release Date, the Additional Bridge Facility in effect on the Escrow Release Date, the 2024 Notes and the related guarantees, the indenture relating to the 2024 Notes, this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Documents and the First Priority Intercreditor Agreement and, in each case, any related documentation and Hedging Obligations) or similar encumbrances or restrictions contained in any future Credit Facilities or Hedging Obligations of or guaranteed by the Issuer and (ii) any exchange notes and related exchange guarantees to be issued in exchange for the 2024 Notes and the related guarantees and similar restrictions contained in the documentation entered into in connection with any future debt securities issued or guaranteed by the Issuer;
(B) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any contractual obligation binding on such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Issuer (other than contractual obligations as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Issuer) and outstanding on such date;
(C) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Sections 4.05(i)(A) or (B) or this clause (C) or contained in any amendment to an agreement referred to in Section 4.05(i)(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 no less favorable to the Issuer or any Restricted Subsidiary (as reasonably determined by the Issuer in good faith) than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;
(D) any encumbrance or restriction with respect to (i) 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 or (ii) a business unit, division, product line or line of business or other assets in a transaction permitted under Section 4.06, in each case pending the closing of such sale or disposition;
(E) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(F) provisions contained in any approval, license or permit with a regulatory authority, in each case entered into in the ordinary course of business;
(G) restrictions on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into in the ordinary course of business, including such restrictions imposed by customers or insurance, surety or bonding companies, and customary provisions in leases, subleases, licenses, sublicenses, service agreements, product sales, asset sale agreements and other contracts restricting the assignment thereof, in each case entered into in the ordinary course of business;
(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 license, permit or other accreditation with a regulatory authority entered into in 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 joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business and any provisions in joint venture agreements in effect at or entered into on the Escrow Release Date;
(L) any encumbrance or restriction contained in the terms of any agreement under which Indebtedness is permitted to be Incurred after the Escrow Release Date pursuant to Section 4.03 if (x) the Issuer reasonably determines in good faith 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 Issuer’s ability to make principal or interest payments on the Notes and (y) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings or agreements (as reasonably determined by the Issuer in good faith);
(M) any encumbrance or restriction of a Receivables Financing Subsidiary effected in connection with a Permitted Receivables Financing; provided, however, that such restrictions apply only to such Receivables Financing Subsidiary;
(N) any agreement or instrument governing any Indebtedness, Disqualified Stock, or Preferred Stock permitted to be Incurred or issued pursuant to Section 4.03 entered into after the Issue Date or the Escrow Release Date so long as such encumbrances and restrictions included therein are no more restrictive in any material respect taken as a whole with respect to any Restricted Subsidiary than (x) encumbrances or restrictions contained in this Indenture or the Credit Agreement as of the Escrow Release Date, or (y) encumbrances or restrictions that were in effect on the Escrow Release Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or the Escrow Release Date in the good faith judgment of the senior management of the Issuer at the time such encumbrances or restrictions are agreed to; and
(O) any encumbrances or restrictions of the type referred to in clauses (a) through (c) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (A) through (N) of this Section 4.05(i); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, no more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing,
(ii) with respect to clause (c) only:
(A) any encumbrance or restriction consisting of customary provisions in leases and other agreements 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) any encumbrance or restriction contained in any Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.03 and 4.13 if such restrictions or conditions apply only to the property or assets securing such Indebtedness;
(D) any encumbrance or restriction contained in any agreement relating to Purchase Money Indebtedness permitted by Section 4.03 if such restrictions or conditions apply only to the assets securing such Indebtedness; and
(E) any encumbrance or restriction consisting of customary provisions restricting assignment of, or the creation of any Lien over, any agreement entered into in the ordinary course of business.
(iii) For purposes of determining compliance with this Section 4.05, (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock other Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any a Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any such Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or a restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 loans 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 4.06advances.
Appears in 1 contract
Sources: Indenture (Western Digital Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Following the Completion Date, the Company will not, and will not permit any of its Restricted 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 Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 4.07(a) hereof will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective Date Completion 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 Effective Completion Date (as determined in good faith by the BorrowerIssuer);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documentsthis Indenture, (ii) the Notes, the Note Guarantees, the Existing Senior Notes, Existing Senior Notes Indentures, the New Senior Guaranteed Notes Indenture and Notes, the New Senior Guaranteed Notes Indenture, the Holdco Notes, (iii) the Holdco Notes Guarantee, the Holdco Notes Indenture, the Existing Notes Indentures Credit Facility and the Existing Notesguarantees thereof, (iv) the Existing Cablevision Notes Indentures New Credit Facility and the Existing Cablevision Notesguarantees thereof, and (v) the Intercreditor Agreement, any Additional Intercreditor Agreement and any Additional Intercreditor Agreement, including in each case, any related security documents, escrow arrangements or other documents related to the foregoingNotes 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 Borrower Company or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower 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 Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company Company, or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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, replaces an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 Lenders 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 BorrowerIssuer);
(6) any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(bB) contained in mortgages, pledges or other security agreements permitted under this Agreement Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement 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;
(cC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary; or
(dD) 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 AgreementIndenture, 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 Completion 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 Lenders Holders of the Notes than (i) the encumbrances and restrictions contained in this Agreement the Existing Credit Facility or any Loan Document the New Credit Facility on the Effective Completion Date, together with the security documents associated therewith, if any, and the Intercreditor Agreement, 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 BorrowerIssuer) and where, in the case of clause (ii), the Borrower 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 BorrowerIssuer’s ability to make principal or interest payments under on the Loan Documents 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 BorrowerCompany, 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 4.064.06 hereof.
(c) Any encumbrance or restriction subject to Section 4.07 that is created or becomes effective following the Completion 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 2023 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 Completion 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 Borrower Company and the Issuer will not, and will not permit any of its other Restricted Subsidiaries Subsidiary (other than a Receivables Subsidiary) to, create directly or otherwise cause indirectly, enter into, incur or permit to exist any agreement or become effective any consensual encumbrance other arrangement that prohibits or consensual restriction on restricts:
(i) the ability of any Restricted Subsidiary to:
(1) pay dividends Notes Party to create, incur or make permit to exist 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 Borrower or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer Lien upon any of its property or assets to secure any of the Borrower Notes Obligations or any Restricted Subsidiary, provided that refinancing or replacement thereof; or
(xii) the priority ability of any Preferred Stock in receiving Restricted Subsidiary (other than the Issuer) to pay dividends or liquidating other distributions prior with respect to dividends any of its Capital Stock or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) to make or repay loans or advances made to the Borrower Company or any Restricted Subsidiary other Notes Party or to other Guarantee Indebtedness Incurred by of the Borrower Company or any Restricted 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 restrictionother Notes Party.
(b) The restrictions in Section 4.07(a3.6(a) will shall not prohibitapply to:
(1i) (A) restrictions imposed by law or any encumbrance Notes Document or restriction (B) restrictions imposed or contemplated by any Scheme Document;
(ii) restrictions existing on the Issue Date, including in the Credit Facilities Documents and the Senior Notes Indentures;
(iii) customary restrictions contained in agreements relating to the sale of a Restricted Subsidiary or of any assets of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary or assets that are to be sold and such sale is permitted under this Indenture;
(iv) solely in the case of Section 3.6(a)(i), restrictions imposed by any agreement relating to (A) secured Indebtedness permitted under this Indenture if such restrictions apply only to the property or assets securing such Indebtedness or (B) Receivables sold pursuant to any Credit Facility Permitted Receivables Financing;
(v) solely in the case of Section 3.6(a)(i), customary provisions in leases and other contracts restricting the assignment thereof;
(vi) restrictions on asset transfers and dividends by any Foreign Subsidiary that are imposed by the terms of any local financing for such Foreign Subsidiary, including government incentives and grants;
(vii) restrictions on cash, other deposits or any other agreement net worth or instrument, in each case, in effect at or similar restrictions imposed by Persons under contracts entered into on in the Effective Date ordinary course of business and any amendmentsnot supporting Indebtedness for whose benefit such cash, restatements, modifications, renewals, supplements, refundings, replacements other deposits or refinancings of such agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements net worth or refinancings are not materially more restrictive, taken as a whole, similar restrictions exist;
(viii) (A) restrictions existing with respect to such dividend and other payment restrictions than those contained in those agreements the Target or any of its subsidiaries on the Scheme Effective Date or (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (iB) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related restriction with respect to the foregoing;
(4) any encumbrance or restriction a Person pursuant to an agreement or instrument of a Person or relating to any Capital Stock of such Person or Indebtedness of a Person, entered into Incurred by such Person in effect on or before the date on which (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary or was acquired by, merged into or consolidated with the Company or any of its Restricted Subsidiaries (in each case, other than Capital Stock issued 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 became a Restricted Subsidiary or was acquired by by, merged into or consolidated with the Borrower Company or was merged, consolidated or otherwise combined with or into in contemplation of the Borrower or any Restricted Subsidiarytransaction) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 (1) such restrictions were not entered into or restrictions on imposed in contemplation of such acquisition, (2) such restriction shall not extend to any Person or the assets or 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 (Company or any of its other Restricted Subsidiaries other than the Person and its Subsidiaries or the assets and property or assetsso acquired and (3) imposed in the case of Indebtedness, such Indebtedness was permitted to be Incurred 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 dispositionthis Indenture;
(9ix) any customary provisions in leases, licenses, joint venture agreements relating to joint ventures 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; provided, 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 that if the encumbrances and restrictions contained in any such agreement or instrument taken as joint venture is a whole are Restricted Subsidiary, such provisions will not materially less favorable to affect 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 BorrowerIssuer’s ability to make anticipated principal or interest payments under on the Loan Documents Notes (as and when they become due reasonably determined by the Company); and
(x) restrictions imposed by any amendment, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (ix) above; provided that (A) such restrictions, taken as a whole, reflect “market” terms as of the applicable date or (yB) such encumbrances and restrictions apply only if a default occurs in respect of a payment amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements 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 thatrefinancing are, in the good faith determination of an Officer or the Board of Directors judgment of the BorrowerIssuer, are necessary no more restrictive in any material respect with respect to such restrictions, taken as a whole, than those in effect under such agreements prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06refinancing thereof.
Appears in 1 contract
Sources: Indenture (American Axle & Manufacturing Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1i) pay dividends dividends, in cash or otherwise, or make any other distributions in cash or otherwise on its Capital Stock to the Borrower or any Restricted Subsidiary or pay any Indebtedness Debt or other obligations obligation owed to the Borrower Company or any Restricted SubsidiarySubsidiary Guarantor;
(2ii) make any loans or advances to the Borrower Company or any Restricted SubsidiarySubsidiary Guarantor; or
(3iii) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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 restrictionGuarantor.
(b) Section 4.07(a) will The foregoing limitations shall not prohibitapply to:
(1i) any encumbrance or restriction pursuant to any Credit Facility or any other an agreement or instrument, in each case, in effect at or entered into on the Effective Issue Date (including, without limitation, under the Senior Secured Credit Agreements, related Hedging Obligations and Cash Management Services), and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of such agreementsthereof; provided that the such amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are not materially more restrictiveless favorable, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those such agreements as in effect on the Effective Date (Issue Date, as determined in good faith by the Borrower)Company;
(2ii) [Reserved];
(3) encumbrances any encumbrance or restrictions restriction existing under or by reason of Debt Incurred pursuant to Sections 4.08 and 4.10 provided that (ix) any Loan Documents, either (iiA) the New Senior Guaranteed Notes Indenture encumbrance or restriction applies only in the event of and during the New Senior Guaranteed Notes, continuance of a payment default or a default with respect to a financial covenant contained in such Debt or agreement or (iiiB) the Existing Notes Indentures and Company determines at the Existing Notestime any such Debt is Incurred (or, (iv) in the Existing Cablevision Notes Indentures and case of any such Debt under a revolving Credit Facility, at the Existing Cablevision Notestime such revolving Credit Facility is established), and (v) at the Intercreditor Agreement and time of any Additional Intercreditor Agreementmodification of the terms of any such encumbrance or restriction, including in each case, that any related security documents, escrow arrangements such encumbrance or other documents related restriction will not materially affect the Company’s ability to make principal or interest payments on the foregoingNotes as they become due;
(4iii) any encumbrance or restriction with respect to a Restricted Subsidiary of 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 (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each caseor was acquired by the Company or any other Restricted Subsidiary of 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any other Restricted Subsidiary when such Person becomes of the Successor Company;
(5iv) any encumbrance or restriction with respect to a Restricted Subsidiary of the Company pursuant to an agreement evidencing Debt Incurred or instrument Preferred Stock issued without violation of this Indenture or effecting a refunding, replacement or refinancing of Indebtedness Debt Incurred or Preferred Stock issued pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1Section 4.12(b)(i), Section 4.07(b)(3(ii) or Section 4.07(b)(4(iii) or this Section 4.07(b)(5Section 4.12(b)(iv) or contained in any amendment to an agreement referred to in Section 4.12(b)(i), (ii) or (iii) or this Section 4.12(b)(iv); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, refinancing agreement or instrument are no less favorable in any material respect to the Lenders amendment, taken as a whole whole, are not materially less favorable to the Holders, as determined by the Company, than those existing immediately prior to the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which entry into such agreement, refinancing agreement or amendment, supplement or other modification relates (as determined in good faith by the Borrower);
(6v) in the case of Section 4.12(a)(iii), any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contract, property or asset or the assignment or transfer of any such lease, license or other contract;
(bB) contained in mortgagesby virtue of any transfer of, pledges agreement to transfer, option or other security agreements permitted under this Agreement right with respect to, or securing Indebtedness Lien on, any property or assets of the Borrower Company or any of its Restricted Subsidiaries not otherwise prohibited by this Indenture;
(C) that is included in a Restricted Subsidiary permitted under this Agreement licensing agreement to the extent such restrictions limit the transfer of the property subject to such licensing agreement;
(D) arising or agreed to in the ordinary course of business and that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any of its Restricted Subsidiaries in any manner material to the Company or any such Restricted Subsidiary as determined by the Company; and
(E) 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 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;
(7vi) 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 (of the Company or any of its property properties or assets) assets imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (whether by stock sale, asset sale, merger, consolidation or the property or assets that are subject to such restrictionotherwise) pending the closing of such sale or disposition;
(9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rulelaw, regulation, governmental license regulation or order, or required by any regulatory authority or stock exchange;
(11viii) any encumbrance or restriction under Capitalized Lease Obligations and purchase money obligations for property leased or acquired in the ordinary course of business that impose encumbrances or restrictions of the nature described inSection 4.12(a)(iii) on the property so leased or acquired;
(ix) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to joint ventures;
(x) restrictions on cash or other deposits or net worth imposed by customers under agreements contracts entered into in the ordinary course of business;; and
(12xi) 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 created 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, Facility that are necessary or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing Facility, as determined by reason of any Lien permitted under Section 4.06the Company.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or 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 Company or any of its Restricted Subsidiary 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 Borrower Company or any of its Restricted SubsidiarySubsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this covenant;
(2) make any loans or advances to the Borrower Company or any of its Restricted SubsidiarySubsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property properties or assets to the Borrower Company or any of its 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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 restrictionSubsidiaries.
(b) Section 4.07(a4.12(a) will not prohibitapply to encumbrances or restrictions existing under or by reason of:
(1) any encumbrance or restriction pursuant to any agreements governing Existing Indebtedness and Credit Facility or any other agreement or instrument, in each case, Facilities as in effect at or entered into on the Effective Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of such those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrower)Issue Date;
(2) [Reserved]the Note Documents;
(3) agreements governing other Indebtedness permitted to be incurred under Section 4.09 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions existing under contained therein are, in the reasonable good faith judgment of an officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in the Note Documents or by reason the Credit Agreement as in effect on the Issue Date or (b) not reasonably likely to have a material adverse effect on the ability of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and Company to make required payments on the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance applicable law, rule, regulation 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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Companyorder;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction pursuant is not applicable to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant toany Person, or that otherwise extendsthe properties or assets of any Person, renewsother than the Person, refundsor the property or assets of the Person, refinances so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5)refinancings thereof; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or instrument are refinancings are, in the reasonable good faith judgment of an officer of the Company, no less favorable in any material respect to the Lenders more restrictive, taken as a whole whole, than those in effect on the encumbrances and restrictions contained date of the acquisition; provided further, that, in the Initial Agreement or Initial Agreements to which case of Indebtedness, such refinancing or amendment, supplement or other modification relates (as determined in good faith Indebtedness was permitted by the Borrower)terms of this Indenture to be incurred;
(6) any encumbrance customary non-assignment provisions in Hydrocarbon purchase and sale 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 exchange agreements or similar contractoperational agreements or in licenses, easements 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 Agreementleases, 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;
(7) 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 Section 4.12(a)(3);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being Refinanced;
(10) encumbrances or restrictions arising or existing by reason Liens permitted to be incurred under the provisions of applicable law or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchangeSection 4.10 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) any encumbrance provisions limiting the disposition or restriction distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the 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 that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under agreements contracts or leases entered into in the ordinary course of business;; and
(1214) 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 customary encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to agreements of 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, types described in the case definition 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“Permitted Business Investments.”
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer will not, and will not permit any of its Restricted 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 Issuer or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 4.07(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective Date Completion 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 Effective Completion Date (as determined in good faith by the BorrowerIssuer);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan this Indenture, the Notes, the Senior Notes, the Senior Notes Indenture, the Existing Senior Notes, Existing Senior Notes Indentures, the Existing Target Notes, the Existing Target Notes Indentures, the Senior Secured Facilities, the guarantees thereof, the Senior Secured Facilities Security Documents, (ii) the New Senior Guaranteed Notes Indenture Escrow Agreement and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoingEscrow Agreements;
(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 Borrower Issuer or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower 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 Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4clause (4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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, replaces an agreement or instrument referred to in Section 4.07(b)(1clauses (1), Section 4.07(b)(3(3), (4) or Section 4.07(b)(4(5) or of this Section 4.07(b)(54.07(b) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1clauses (1), Section 4.07(b)(3(3), (4) or Section 4.07(b)(4(5) or of this Section 4.07(b)(54.07(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 Lenders 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 BorrowerIssuer);
(6) any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(bB) contained in mortgages, pledges or other security agreements permitted under this Agreement Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement 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;
(cC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Issuer or any Restricted Subsidiary; or
(dD) 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 AgreementIndenture, 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 Completion 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 Holders of the Notes than (i) the encumbrances and restrictions contained in this Agreement or any Loan Document the Senior Secured Facilities on the Effective Completion Date, together with the security documents associated therewith or (ii) is customary in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of clause (ii), the Borrower 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 BorrowerIssuer’s ability to make principal or interest payments under on the Loan Documents 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 BorrowerIssuer, 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 (CSC Holdings LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will notNeither the Company nor a Guarantor shall, and will not neither of them shall permit any of its Restricted Subsidiaries Subsidiary to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1) pay dividends dividends, in cash or otherwise, or make any other distributions on or in cash or otherwise on respect of its Capital Stock to the Borrower Company, a Guarantor or any other Restricted Subsidiary or Subsidiary,
(2) pay any Indebtedness Debt or other obligations obligation owed to the Borrower Company, a Guarantor or any other Restricted Subsidiary;,
(23) make any loans or advances to the Borrower Company, a Guarantor or any other Restricted Subsidiary; , or
(34) sell, lease or transfer any of its property or assets Property to the Borrower Company, a Guarantor 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) The foregoing limitations will not prohibitapply:
(1) any encumbrance or restriction pursuant With respect to any Credit Facility or any other agreement or instrumentSections 4.13(a)(1), in each case(2), (3) and (4), to restrictions which are:
(A) in effect at or entered into on the Effective Issue Date and any amendments(as such restrictions may be amended from time to time, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of such agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are any such amendment is not materially more restrictive, taken restrictive as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the BorrowerRestricted Subsidiary);
(2B) [Reserved]imposed by the Notes or this Indenture, or by indentures governing other Debt the Company or a Guarantor Incurs (and, if such Debt is Guaranteed, by the guarantors of such Debt) ranking on a parity with the Notes or the Note Guarantees, provided that the restrictions imposed by such indentures are no more restrictive than the restrictions imposed by this Indenture;
(3C) encumbrances imposed by the Credit Agreement with respect to Debt permitted to be Incurred on or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related subsequent to the foregoingdate of this Indenture (as such restrictions may be amended from time to time, provided that any such restriction is not materially more restrictive as to such Restricted Subsidiary);
(4D) any encumbrance or restriction pursuant relating to an agreement or instrument Debt 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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person existing at the time it became a Restricted Subsidiary (if such restriction was not created in each case, other than Capital Stock connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower or any a Guarantor (as such restrictions may be amended from time to time in a manner not materially more restrictive as to such Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5E) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing that result from the Refinancing of Indebtedness Debt Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(14.13(b)(1)(A), Section 4.07(b)(3(B) or Section 4.07(b)(4(D) or this Section 4.07(b)(5)above; provided, however, that the encumbrances and restrictions with respect to provided such Restricted Subsidiary contained in any such agreement or instrument are restriction is no less favorable in any material respect to the Lenders Holders of the Notes than those under the agreement evidencing the Debt so Refinanced when taken as a whole than whole;
(F) restrictions on cash or other deposits or net worth imposed by leases or other agreements entered into in the ordinary course of business;
(G) any encumbrances or restrictions required by any foreign or governmental, local or regulatory authority having jurisdiction over the Company, a Guarantor or any Restricted Subsidiary or any of their businesses in connection with any development grant made or other assistance provided to the Company, a Guarantor or any Restricted Subsidiary by such governmental authority;
(H) customary provisions in joint venture or similar agreements or other arrangements with minority investors in Restricted Subsidiaries and customary provisions in Debt incurred by Restricted Subsidiaries organized outside the United States and Canada; provided, however, that such encumbrance or restriction is applicable only to such Restricted Subsidiary; and provided, further, that (i) the encumbrance or restriction is customary in comparable agreements and (ii) the Company determines that any such encumbrance or restriction will not materially affect the ability of the Company to make any anticipated payments of principal or interest on the Notes;
(I) customary restrictions contained in asset sale, stock sale, merger and other similar agreements limiting the Initial Agreement transfer, disposition or Initial Agreements to which distribution of such refinancing or amendmentProperty pending the closing of such sale, supplement or other modification relates (as determined in good faith by the Borrower);
(6) including 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 imposed with respect to a such 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 dispose of all or substantially all the Capital Stock or assets of such Restricted Subsidiary Subsidiary;
(J) customary restrictions imposed on the transfer of copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the property or assets that are subject to such restriction) pending the closing assignment of such agreements or any rights thereunder or in leases governing leasehold interests;
(K) any agreement for the sale or other disposition of a Guarantor or a Restricted Subsidiary that restricts distributions of assets (including Capital Stock) by that Guarantor or that Restricted Subsidiary pending its sale or other disposition;
(9L) restrictions on Debt Incurred by Foreign Restricted Subsidiaries; provided that such restrictions are then customary for Debt of such type Incurred in such jurisdiction; or
(M) restrictions resulting from any U.S. or foreign law, rule, regulation or order applicable to the Company, a Guarantor or any Restricted Subsidiary.
(2) With respect to Section 4.13(a)(4) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Section 4.11 that limit the right of the debtor to dispose of the Property securing such Debt;
(B) encumbering Property at the time such Property was acquired by the Company, a Guarantor or any Restricted Subsidiary, so long as such restrictions relate solely to the Property so acquired and were not created in connection with or in anticipation of such acquisition;
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in leasesother agreements that restrict assignment of such agreements or rights thereunder;
(D) imposed by virtue of any transfer of, licensesagreement to transfer, joint venture agreements and other similar agreements and instruments entered into option or right with respect to or Lien on any Property of the Company or the relevant Guarantor or Restricted Subsidiary not otherwise prohibited by this Indenture; or
(E) imposed under any Purchase Money Debt or Capital Lease Obligation 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 business with respect only to the Effective Date pursuant to Section 4.04 if Property 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 4.06subject thereof.
Appears in 1 contract
Sources: Indenture (Intertape Woven Products Services S.A. De C.V.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will On and after the Escrow Release Date, the Issuer shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower Issuer or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
, (2b) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
Subsidiary or (3c) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary, except:
(i) with respect to clauses (a), (b) and (c):
(A) any encumbrance or restriction pursuant to (i) an agreement in effect at or entered into on the Escrow Release Date (including the Credit Agreement in effect on the Escrow Release Date, the Additional Bridge Facility in effect on the Escrow Release Date, the 2023 Notes and the related guarantees, the 2023 Notes Indenture, this Indenture, the Notes and the Subsidiary Guarantees and, in each case, any related documentation (including any collateral or security documents or intercreditor agreement) and Hedging Obligations) or similar encumbrances or restrictions contained in any future Credit Facilities or Hedging Obligations of or guaranteed by the Issuer and (ii) any exchange notes and related exchange guarantees to be issued in exchange for the Initial Notes and the Subsidiary Guarantees pursuant to the Registration Rights Agreement and similar restrictions contained in the documentation entered into in connection with any future debt securities issued or guaranteed by the Issuer;
(B) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any contractual obligation binding on such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Issuer (other than contractual obligations as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Issuer) and outstanding on such date;
(C) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Sections 4.05(i)(A) or (B) or this clause (C) or contained in any amendment to an agreement referred to in Section 4.05(i)(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 no less favorable to the Issuer or any Restricted Subsidiary (as reasonably determined by the Issuer in good faith) than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;
(D) any encumbrance or restriction with respect to (i) 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 or (ii) a business unit, division, product line or line of business or other assets in a transaction permitted under Section 4.06, in each case pending the closing of such sale or disposition;
(E) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(F) provisions contained in any approval, license or permit with a regulatory authority, in each case entered into in the ordinary course of business;
(G) restrictions on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into in the ordinary course of business, including such restrictions imposed by customers or insurance, surety or bonding companies, and customary provisions in leases, subleases, licenses, sublicenses, service agreements, product sales, asset sale agreements and other contracts restricting the assignment thereof, in each case entered into in the ordinary course of business;
(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 license, permit or other accreditation with a regulatory authority entered into in 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 joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business and any provisions in joint venture agreements in effect at or entered into on the Escrow Release Date;
(L) any encumbrance or restriction contained in the terms of any agreement under which Indebtedness is permitted to be Incurred after the Escrow Release Date pursuant to Section 4.03 if (x) the Issuer reasonably determines in good faith 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 Issuer’s ability to make principal or interest payments on the Notes and (y) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings or agreements (as reasonably determined by the Issuer in good faith);
(M) any encumbrance or restriction of a Receivables Financing Subsidiary effected in connection with a Permitted Receivables Financing; provided, however, that such restrictions apply only to such Receivables Financing Subsidiary;
(N) any agreement or instrument governing any Indebtedness, Disqualified Stock, or Preferred Stock permitted to be Incurred or issued pursuant to Section 4.03 entered into after the Issue Date or the Escrow Release Date so long as such encumbrances and restrictions included therein are no more restrictive in any material respect taken as a whole with respect to any Restricted Subsidiary than (x) encumbrances or restrictions contained in this Indenture or the Credit Agreement as of the Escrow Release Date, or (y) encumbrances or restrictions that were in effect on the Escrow Release Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or the Escrow Release Date in the good faith judgment of the senior management of the Issuer at the time such encumbrances or restrictions are agreed to; and
(O) any encumbrances or restrictions of the type referred to in clauses (a) through (c) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (A) through (N) of this Section 4.05(i); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, no more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing,
(ii) with respect to clause (c) only:
(A) any encumbrance or restriction consisting of customary provisions in leases and other agreements 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) any encumbrance or restriction contained in any Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.03 and 4.13 if such restrictions or conditions apply only to the property or assets securing such Indebtedness;
(D) any encumbrance or restriction contained in any agreement relating to Purchase Money Indebtedness permitted by Section 4.03 if such restrictions or conditions apply only to the assets securing such Indebtedness; and
(E) any encumbrance or restriction consisting of customary provisions restricting assignment of, or the creation of any Lien over, any agreement entered into in the ordinary course of business.
(iii) For purposes of determining compliance with this Section 4.05, (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock other Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any a Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any such Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or a restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 loans 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 4.06advances.
Appears in 1 contract
Sources: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary (other than a Subsidiary Guarantor) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than a Subsidiary Guarantor) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Borrower Company or any of its Restricted Subsidiaries, or pay any Indebtedness owed to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, 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 assets or property 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(2) above).
(b) Section 4.07(a4.08(a) will shall not prohibit:
(1) any encumbrance or restriction pursuant apply to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions of (i) the Company or any Loan Documentsof its Restricted Subsidiaries in effect on the Issue Date, (ii) including, without limitation, pursuant to the New Senior Guaranteed Notes Indenture and Credit Facility, the New Senior Guaranteed NotesEx-Im Credit Facility, (iii) the Existing Notes Indentures and the Existing Notes, (iv) the Existing Cablevision Notes Indentures and Security Documents, the Existing Cablevision NotesCollateral Trust Agreement, and (v) the Intercreditor Agreement and any Additional Intercreditor Agreement, including related Hedging Obligations and Indebtedness permitted pursuant to clause (3) of Section 4.09(b);
(2) this Indenture, the Notes and the Subsidiary Guarantees;
(3) any agreement or other instrument of a Person acquired by or merged, amalgamated or consolidated with or into the Company or any Restricted Subsidiary or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, in each case that was in existence at the time of such acquisition (or at the time it merges, amalgamates or consolidates with or into the Company or any Restricted Subsidiary or is assumed in connection with the acquisition of assets or property from such Person) or designation, but, in each case, not created in contemplation thereof, which encumbrance or restriction is not applicable to any related security documentsPerson, escrow arrangements or the assets or property of any Person, other documents related to than the foregoingPerson and its Subsidiaries, or the assets or property of the Person and its Subsidiaries, so acquired or designated (including after-acquired assets and property);
(4) any encumbrance in the case of clause (3) of Section 4.08(a), Permitted Liens or restriction pursuant Liens otherwise permitted to an agreement or instrument be Incurred under the provisions of a Person or relating Section 4.12 that limit the right of the debtor 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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition dispose of assets or (iii) property subject to 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor CompanyLiens;
(5) any encumbrance purchase money obligations, mortgage financings, Capitalized Lease Obligations and similar obligations 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 AgreementIndenture, 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 nature described in clause (3) of Section 4.08(a) with respect to the assets of the joint ventureor property purchased, acquired, financed, designed, developed, leased, constructed, repaired, replaced, maintained, installed, improved or insured in connection therewith or thereby (including any proceeds thereof, accessions thereto and any upgrades or improvements thereto);
(8) any encumbrance 6) encumbrances or restriction restrictions contained in agreements for the sale, transfer or other disposition of assets or property, including without limitation customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Company pursuant to an agreement that has been entered into for the direct sale, transfer or indirect sale or other disposition to a Person of all or substantially all a portion of the Capital Stock Stock, assets or assets property of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionSubsidiary;
(97) customary provisions in leasesrestrictions on cash, 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 Cash Equivalents or other deposits or net worth imposed by customers customers, suppliers or landlords under agreements contracts entered into in the ordinary course of business or as required by insurance surety or bonding companies;
(8) any provisions in joint venture agreements, stockholders agreements, partnership agreements, LLC agreements and other similar agreements, which (x) are customary or (y) do not adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due (as determined by the Company in good faith);
(9) any provisions in leases, subleases, licenses, sublicenses, asset sale agreements, sale/leaseback agreements or stock sale agreements and other agreements entered into by the Company or any Restricted Subsidiary that (x) are customary and entered into in the ordinary course of business or (y) do not adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due (as determined by the Company in good faith);
(10) applicable law or any applicable rule, regulation or order, or any license, permit or other authorization issued by any governmental or regulatory authority;
(11) encumbrances or restrictions arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, (x) detract from the value of the assets or property of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary (as determined by the Company in good faith), or (y) materially affect the Company’s ability to make payments of principal or interest payments on the Notes when due (as determined by the Company in good faith);
(12) contractual encumbrances or restrictions contained in any encumbrance Debt Facilities or restriction pursuant other Indebtedness Incurred by the Company in accordance with Section 4.09 that (x) are not materially more restrictive, when taken as a whole, than those applicable in either this Indenture or the Senior Credit Facility on the Issue Date (as determined by the Company in good faith), or (y) do not adversely affect the Company’s ability to Currency Agreements, Interest Rate Agreements make payments of principal or Commodity Hedging Agreements;interest payments on the Notes when due (as determined by the Company in good faith); or
(13) any encumbrance encumbrances or restriction arising pursuant restrictions imposed by any amendment, restatement, modification, renewal, increase, supplement, extension, refunding, replacement or refinancing of any of the contracts, agreements or other instruments referred to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to in the Effective Date pursuant to immediately preceding clauses (1) through (12) of this Section 4.04 if 4.08(b); provided, however, that the encumbrances and or restrictions contained in any such agreement amendment, restatement, modification, renewal, increase, supplement, extension, refunding, replacement 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 thatrefinancing are, in the good faith determination of an Officer or the Board of Directors judgment of the BorrowerCompany, are necessary not materially more restrictive, when taken as a whole, than the encumbrances and restrictions prior to such amendment, restatement, modification, renewal, increase, supplement, extension, refunding, replacement or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06refinancing.
Appears in 1 contract
Sources: Indenture (Viasat Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer will not, and will not permit any of its Restricted Subsidiaries 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 to the Borrower Issuer or any a Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the Borrower or any Restricted Subsidiary;
Issuer, (2ii) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(3iii) sell, lease or transfer any of its property or assets to the 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibit:of
(1) any encumbrance or restriction pursuant to any a Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of such agreementsIssue Date; 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement or instrument of a Person or relating to any Indebtedness or Capital Stock Incurred or Indebtedness of a Person, entered into issued by such Restricted Subsidiary on or before prior to the date on which (i) such Person Restricted Subsidiary was acquired by the Issuer or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Indebtedness or Capital Stock Incurred or Indebtedness Incurred issued as consideration infor, 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 acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower or any a Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower 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 Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (1) or (2) of this Section 4.07(b)(44.6 or contained in any amendment to an agreement referred to in clause (1) or (2) of this Section 4.07(b)(5)4.6; 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 Lenders taken as a whole Noteholders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (predecessor agreements as determined in good faith by the BorrowerBoard of Directors; (4) in the case of clause (iii);
(6) , any encumbrance or restriction:
(a) restriction 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, other contract or the assignment or transfer of any such lease, license or other such contract;
; (b5) in the case of clause (iii), contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages 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 security agreements or 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;
(76) 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 1 contract
Sources: Indenture (Spectrasite Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or (3) transfer any of its property or assets to the Company or any Restricted Subsidiary, 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.
(b) The provisions of Section 4.07(a3.6
(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of : (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) 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 for the 10 3/4% Notes, the Credit Agreement, the Senior Subordinated Indenture and the indenture for the 8 3/4% Notes; (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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into in contemplation of the Borrower or any Restricted Subsidiarytransaction) and outstanding on such date; provided thatdate provided, for that any such encumbrance or restriction shall not extend to any assets or property of the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any other Restricted Subsidiary when such Person becomes other than the Successor Company;
assets and property so acquired; (5iii) any encumbrance or restriction with respect to a Restricted Subsidiary 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(33.6(b)(i) or Section 4.07(b)(4(b)(ii) or this Section 4.07(b)(53.6(b)(iii) or contained in any amendment to an agreement referred to in Section 3.6(b)(i) or (b)(ii) or this Section 3.6(b)(iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the 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 Borrower);
(6) any encumbrance or restriction:Subsidiary
(a) that restricts purchase money obligations for property acquired in a customary manner the subletting, assignment or transfer ordinary course 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;
business and (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 AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in Section 3.6(a)(3) on the property so acquired or acquired; (vi) 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;
; (9vii) customary net worth provisions in leases, licenses, joint venture agreements leases and other similar agreements and instruments entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
; and (10viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license regulation 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 1 contract
Sources: Indenture (NBC Acquisition Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower Company or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
a Subsidiary Guarantor, (2b) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets to the Borrower or any Restricted SubsidiaryCompany, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 clauses (a), (b) and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrower)c) above;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the Issue Date, including the Credit Agreement, the Buffets Holdings Existing Indenture and the Buffets Existing Indenture;
(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 a Person, entered into (including Acquired Indebtedness) Incurred by such Restricted Subsidiary on or before prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryCompany) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(34.05(1)(i) or Section 4.07(b)(44.05(1)(ii) or this clause (iii) or contained in any amendment to an agreement referred to in Section 4.07(b)(54.05(1)(i) or 4.05(1)(ii) or this clause (iii); providedPROVIDED, howeverHOWEVER, 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 Lenders 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 amendment, supplement or other modification relates (as determined in good faith by the Borrower);
(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 predecessor 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;
(7iv) 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 consisting of any restriction on the sale or other disposition of assets or property so acquired securing Indebtedness as a result of a Lien permitted to be Incurred under the Indenture on such asset or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint ventureproperty;
(8) v) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(9vi) customary provisions in leasesany restriction arising under applicable law, licenses, joint venture agreements and regulation or order;
(vii) any restriction on cash or other similar agreements and instruments deposits or net worth imposed by suppliers or landlords under contracts entered into in the ordinary course of business;
(10viii) any restriction in any agreement that is not materially more restrictive than the restrictions under the terms of the Credit Agreement, the Buffets Holdings Existing Indenture and the Buffets Existing Indenture as in effect on the Issue Date; and
(ix) any encumbrances or restrictions arising created with respect to (x) Indebtedness of Buffets Holdings, Buffets or existing Buffets Guarantors permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 4.03 and (y) Indebtedness of other Restricted Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 4.03; PROVIDED that in the case of this clause (y) the Board of Directors of the Company determines (as evidenced by reason a resolution of applicable law the Board of Directors of the Company) in good faith at the time such encumbrances or any applicable rule, regulation, governmental license restrictions are created that such encumbrances or order, or required by any regulatory authority or stock exchangerestrictions would not reasonably be expected to impair the ability of the Company to make payments of interest and scheduled payments of principal on the Securities in each case as and when due;
(112) with respect to clause (c) above only,
(i) any such encumbrance or restriction on cash 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;
(ii) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements or mortgages; and
(iii) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other deposits or net worth imposed by customers under similar 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 1 contract
Sources: Indenture (Buffets Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or (3) transfer any of its property or assets to the Company or any Restricted Subsidiary, 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.
(b) The provisions of Section 4.07(a3.6(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of : (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) 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 Subsidiary Guarantee, the Collateral Documents, the Intercreditor Agreement, the ABL Credit Agreement, the ABL Loan Documents, the Term Loan Credit Agreement and the Term Loan Documents; (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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into in contemplation of the Borrower or any Restricted Subsidiarytransaction) and outstanding on such date; provided thatdate provided, for that any such encumbrance or restriction shall not extend to any assets or property of the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any other Restricted Subsidiary when such Person becomes other than the Successor Company;
assets and property so acquired; (5iii) any encumbrance or restriction with respect to a Restricted Subsidiary 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(33.6(b)(i) or Section 4.07(b)(4(b)(ii) or this Section 4.07(b)(53.6(b)(iii) or contained in any amendment to an agreement referred to in Section 3.6(b)(i) or (b)(ii) or this Section 3.6(b)(iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in Section 3.6(b)(i) or (b)(ii) on the Initial Agreement Issue Date or Initial Agreements to which the date such refinancing or amendmentRestricted Subsidiary became a Restricted Subsidiary, supplement or other modification relates whichever is applicable; (as determined iv) in good faith by the Borrowercase of Section 3.6(b)(iii);
(6) , any encumbrance or restriction:
restriction (a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
; (b) contained in mortgages, pledges or other security agreements permitted under this Agreement or the Indenture securing Indebtedness of the Borrower 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 Borrower Company or any Restricted Subsidiary; or(v)
(da) pursuant to purchase money obligations for property acquired in the terms ordinary course of any license, authorization, concession or permit;
business and (7b) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of Section 3.6(a) on the property so acquired or acquired; (vi) 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;
; (9vii) customary net worth provisions in leases, licenses, joint venture agreements leases and other similar agreements and instruments entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
; and (10viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license regulation 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 1 contract
Sources: Indenture (NBC Acquisition Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower Company or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Company, (2b) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets to the Borrower Company, except:
(i) with respect to clauses (a), (b) and (c):
(A) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Escrow Release Date (including the Senior Secured Credit Facilities, this Indenture, the Securities and the Guarantees);
(B) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Company (other than 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company) and outstanding on such date;
(C) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement or other instrument referred to in Sections 4.05(i)(A) or 4.05(i)(B) or this clause (C) or contained in any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing to an agreement referred to in Section 4.05(i)(A) or 4.05(i)(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, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing, taken as a whole, are no less favorable to the Company (as reasonably determined by the Company in good faith) than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;
(D) any encumbrance or restriction with respect to (i) 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 or (ii) a business unit, division, product line or line of business or other assets in a transaction permitted under Section 4.06, in each case pending the closing of such sale or disposition;
(E) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(F) provisions contained in any approval, license or permit with a regulatory authority, in each case entered into in the ordinary course of business;
(G) restrictions on cash, Cash Equivalents or other deposits or net worth imposed under contracts entered into in the ordinary course of business, including such restrictions imposed by customers 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 license, permit or other accreditation with a regulatory authority entered into in 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 joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered in the ordinary course of business;
(L) any encumbrance or restriction contained in the terms of any agreement under which Indebtedness is permitted to be Incurred after the Escrow Release Date pursuant to Section 4.03 if either (i) the encumbrance or restriction applies only in the event of and during the continuance of a payment default contained in such Indebtedness or agreement or (ii) the Company reasonably determines in good faith 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 Securities and any other Indebtedness that is an obligation of the Company; and
(M) restrictions and conditions imposed by transactional agreements and documents (including organizational documents of Receivables Subsidiaries) governing Permitted Receivables Facilities and related Indebtedness; provided that any such restrictions and conditions (i) are customary and usual for such Permitted Receivables Facilities, as determined in good faith by the Company or such Subsidiary, provided and (ii) in the case of any restrictions or conditions upon the ability of the Company or any Subsidiary to create, incur or permit to exist any Lien upon any of its assets, such restrictions and conditions apply only to assets of and interests in the related Receivables Subsidiary;
(ii) with respect to clause (c) only:
(A) any encumbrance or restriction consisting of customary provisions in leases and other agreements 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) any encumbrance or restriction contained in any Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.03 and 4.13 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(xD) any encumbrance or restriction contained in any agreement relating to Purchase Money Indebtedness permitted by Section 4.03 if such restrictions or conditions apply only to the assets securing such Indebtedness; and
(E) any encumbrance or restriction consisting of customary non-assignment provisions in a lease, license or other contract, in each case entered into in the ordinary course of business or consistent with past practice. For purposes of determining compliance with this Section 4.05, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (yii) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any a Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any such Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or a restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 loans 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 4.06advances.
Appears in 1 contract
Sources: Indenture (NCR Atleos, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will On and after the Escrow Release Date, the Issuer shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower Issuer or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
, (2b) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
Subsidiary or (3c) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary, provided that except:
(xi) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior with respect to dividends or liquidating distributions being paid on common stock and clauses (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiarya), 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.
(b) Section 4.07(a) will not prohibit:and (c):
(1A) any encumbrance or restriction pursuant to any Credit Facility or any other (i) an agreement or instrument, in each case, in effect at or entered into on the Effective Escrow Release Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of such agreements; provided that (including 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 Credit Agreement in those agreements effect on the Effective Date (as determined Escrow Release Date, the Additional Bridge Facility in good faith by effect on the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan DocumentsEscrow Release Date, (ii) the New Senior Guaranteed 2023 Notes Indenture and the New Senior Guaranteed Notesrelated guarantees, (iii) the Existing 2023 Notes Indentures Indenture, this Indenture, the Notes and the Existing NotesSubsidiary Guarantees and, (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 related documentation (including any collateral or security documents, escrow arrangements documents or other documents intercreditor agreement) and Hedging Obligations) or similar encumbrances or restrictions contained in any future Credit Facilities or Hedging Obligations of or guaranteed by the Issuer and (ii) any exchange notes and related exchange guarantees to be issued in exchange for the Initial Notes and the Subsidiary Guarantees pursuant to the foregoing;Registration Rights Agreement and similar restrictions contained in the documentation entered into in connection with any future debt securities issued or guaranteed by the Issuer;
(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 contractual obligation binding on such Restricted Subsidiary on or before prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Issuer (ii) such agreement or instrument is assumed by the 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 contractual obligations 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryIssuer) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;date;
(5C) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, to an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3Sections 4.05(i)(A) or Section 4.07(b)(4(B) or this Section 4.07(b)(5) clause (an “Initial Agreement”C) or contained in any amendment, supplement or other modification amendment to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(34.05(i)(A) or Section 4.07(b)(4(B) or this Section 4.07(b)(5); 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 in any material respect to the Lenders taken Issuer or any Restricted Subsidiary (as a whole reasonably determined by the Issuer in good faith) than the encumbrances and restrictions with respect to such Restricted Subsidiary 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 Borrower);predecessor agreements;
(6D) 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 (i) 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
(ii) a business unit, division, product line or the property line of business or other assets that are subject to such restriction) in a transaction permitted under Section 4.06, in each case 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.disposition;
Appears in 1 contract
Sources: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries 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 the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restriction.advances); or
(b3) Section 4.07(atransfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) 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 Securities, the Exchange Notes, the Subsidiary Guarantees, the indenture for the 10.625% Notes, the 10.625% Notes and the related guarantees 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 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 (i) such Person Restricted Subsidiary was acquired by the Company or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into in contemplation of the Borrower or any Restricted Subsidiarytransaction) and outstanding on such date; provided thatdate provided, for that any such encumbrance or restriction shall not extend to any assets or property of the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any other Restricted Subsidiary when such Person becomes other than the Successor Companyassets and property so acquired;
(5iii) any encumbrance or restriction with respect to a Restricted Subsidiary 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, to an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (i) or Section 4.07(b)(4(ii) of this paragraph or this Section 4.07(b)(5) clause (an “Initial Agreement”iii) or contained in any amendment, supplement restatement, modification, renewal, supplement, refunding, replacement or other modification to refinancing of an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (i) or Section 4.07(b)(4(ii) of this paragraph or this Section 4.07(b)(5clause (iii); 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 Lenders respect, taken as a whole 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 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 Borrower)whichever is applicable;
(6iv) in the case of clause (3) of the first paragraph of this Section 3.6, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Agreement or Indenture securing Indebtedness of the Borrower 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 Borrower Company or any Restricted Subsidiary; or
(d) pursuant to the terms of any license, authorization, concession or permit;
(7a) 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 AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.6 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 ventureacquired;
(8) 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;
(9vii) any customary provisions in leases, licenses, joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements and instruments entered into in the ordinary course of business;
(10viii) net worth provisions in leases and other 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, governmental license regulation or order, or required by any regulatory authority or stock exchange;
(11x) 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 agreements entered into Subsidiary Guarantors in accordance with Section 3.3 that are not more restrictive, taken as a whole, than those applicable to the ordinary course of business;Company in either this Indenture or the Senior Secured Credit Agreement on the Issue Date (which results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level); and
(xi) encumbrances or restrictions contained in indentures or other debt instruments or debt arrangements Incurred or Preferred Stock issued by Restricted Subsidiaries that are not Subsidiary Guarantors subsequent to the Issue Date pursuant to clauses (5) and (12) any encumbrance or restriction of the second paragraph of Section 3.3 by Restricted Subsidiaries, provided that after giving effect to such Incurrence of Indebtedness, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to 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, Consolidated Coverage Ratio test set forth in the case first paragraph 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 4.063.3.
Appears in 1 contract
Sources: Indenture (Res Care Inc /Ky/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or 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 Company or any of its Restricted Subsidiary Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations indebtedness owed to the Borrower Company or any of its Restricted SubsidiarySubsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this covenant;
(2) make any loans or advances to the Borrower Company or any of its Restricted SubsidiarySubsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); oror |
(3) sell, lease or transfer any of its property properties or assets to the Borrower Company or any of its Restricted SubsidiarySubsidiaries. However, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) preceding restrictions will not prohibitapply to encumbrances or restrictions existing under or by reason of:
(1) any encumbrance or restriction pursuant to any agreements governing Existing Indebtedness and the Credit Facility or any other agreement or instrument, in each case, Agreement as in effect at or entered into on the Effective Date date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of such those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrower)date of this Indenture;
(2) [Reserved]this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of the covenant described in Section 3.2 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions existing under or by reason contained therein are, in the reasonable good faith judgment of an officer of the Company, either (ia) any Loan Documentsnot materially more restrictive, (ii) taken as a whole, than those contained in this Indenture, the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance applicable law, rule, regulation 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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Companyorder;
(5) any agreement or other instrument of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such agreement or instrument was created in connection with or in contemplation of such acquisition), which encumbrance or restriction pursuant is not applicable to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant toany Person, or that otherwise extendsthe properties or assets of any Person, renewsother than the Person and its Subsidiaries, refundsor the property or assets of the Person and its Subsidiaries, refinances so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5)refinancings thereof; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or instrument are refinancings are, in the reasonable good faith judgment of an officer of the Company, no less favorable in any material respect to the Lenders more restrictive, taken as a whole whole, than those in effect on the encumbrances and restrictions contained date of the acquisition; provided further, that, in the Initial Agreement or Initial Agreements to which case of Indebtedness, such refinancing or amendment, supplement or other modification relates (as determined in good faith Indebtedness was permitted by the Borrower)terms of this Indenture to be incurred;
(6) any encumbrance customary non-assignment provisions in Hydrocarbon purchase and sale 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 exchange agreements or similar contractoperational agreements or in licenses, easements 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 Agreementleases, 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;
(7) purchase money obligations for property acquired in the ordinary course of business and Finance Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of the preceding paragraph; |
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) encumbrances or restrictions arising or existing by reason Liens permitted to be incurred under the provisions of applicable law or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchangethe covenant described in Section 3.6 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) any encumbrance provisions limiting the disposition or restriction distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under agreements contracts or leases entered into in the ordinary course of business;
(1214) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business;
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(13) by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction arising pursuant to an agreement or instrument relating does not extend to any Indebtedness permitted to be Incurred subsequent to assets or property of 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 Company or any Loan Document on other Restricted Subsidiary other than the Effective Date, or (ii) is customary in comparable financings (as determined in good faith by the Borrower) assets and where, in the case of clause (ii), the Borrower determines at the time of issuance property of such Indebtedness that such Unrestricted Subsidiary; and
(17) contractual encumbrances or restrictions (x) will not adversely affectin effect on the Issue Date and, in each case, any material respectsimilar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments. In each case set forth above, notwithstanding any stated limitation on the Borrower’s ability to make principal assets 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 property that may be subject to such Indebtedness;
(14) any encumbrance or restrictions arising in connection with any Purchase Money Noterestriction, 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 on a specified asset or property or group or type of any Lien permitted under Section 4.06.assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof. |
Appears in 1 contract
Sources: Indenture (Earthstone Energy Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 held by the Borrower Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary, including, for the avoidance of doubt, for the purpose of making payments to the Issuer or the Company with respect to or in connection with the Notes (including, but not limited to, refinancing, amending, extending, repaying, purchasing, investing in and/or pledging assets in support of any Notes and/or paying any principal amounts, interest amounts, premia, catch-up payments, make-whole amounts, fees, underwriting discounts, costs, commissions, hedging, tax, break costs, indemnification obligations or other expenses (including any consent fees) in connection therewith); 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 Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 4.07(a4.05
(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or (A) the RCF Finance Documents and the Piraeus Term Loan Finance Documents, in each case as of the Issue Date, (B) any other agreement or instrument, in each case, in effect at or entered into on the Effective Issue Date after giving pro forma effect to the Transactions, including, without limitation, this Indenture, the Exchange Notes Indenture, the Notes and the Exchange Notes, the Intercreditor Agreement or (C) any amendments, restatements, modifications, renewals, supplements, refundings, replacements Security Documents 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 Effective Date (as determined in good faith by the Borrower)Additional Intercreditor Agreement;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 Borrower Company or any Restricted Subsidiary, (ii) or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower 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 Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted SubsidiarySubsidiary entered into or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower 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 replacesrefinances, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (1) or (2) of this Section 4.07(b)(44.05(b) or this Section 4.07(b)(5clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (1) or (2) of this Section 4.07(b)(44.05(b) or this Section 4.07(b)(5clause (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 Lenders 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 BorrowerBoard of Directors of the Issuer);
(64) any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;
(bB) contained in mortgages, pledges pledges, charges or other security agreements permitted under not prohibited by this Agreement Indenture or securing Indebtedness or other obligations of the Borrower Company or a Restricted Subsidiary permitted under not prohibited by this Agreement Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges pledges, charges or other security agreements;; or
(cC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary; or
(d) pursuant to the terms of any license, authorization, concession or permit;
(75) (x) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions on the property so acquired or (y) any encumbrance or restriction pursuant to a joint venture agreement venture, co-investment or similar agreements (and any agreements ancillary or consequential thereto) that imposes impose restrictions on the transfer of the rights, property or assets of the joint venture, co-investment vehicle or other entity the subject of any such agreement(s);
(8) 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;
(97) customary provisions in leases, licenses, joint venture agreements agreements, co-investment and other similar or related agreements and instruments instruments, in each case, entered into in the ordinary course of businessbusiness or where the Issuer determines that such encumbrances or restrictions will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes;
(10) 8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license regulation or order, or required by any regulatory authority or stock exchangeauthority;
(119) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers, or as required by insurance, surety or bonding companies or indemnities, in each case, under agreements or policies entered into in the ordinary course of business;
(1210) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(1311) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Effective Issue Date pursuant to the provisions of Section 4.04 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 Lenders Holders than (i) the encumbrances and restrictions contained in this Indenture, the New Notes Indenture, the RCF Facility Agreement or as of the Issue Date, the Piraeus Term Loan Facility Agreement as of the Issue Date, the Intercreditor Agreement and any Loan Document Additional Intercreditor Agreement, together with the security documents associated therewith as in effect on the Effective Date, or (ii) is customary in comparable financings (as determined in good faith by Issue Date after giving pro forma effect to 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 FinancingTransactions; or
(1512) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.064.09.
Appears in 1 contract
Sources: Indenture (Intrum ZRT)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will not, and will not permit any of its Restricted 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 Borrower or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective IssueEffective 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 Effective IssueEffective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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.Section
Appears in 1 contract
Sources: Credit Agreement (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or 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 Issuer or any of its Restricted Subsidiary 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 Borrower Issuer or any of its Restricted SubsidiarySubsidiaries;
(2) make any loans or advances to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries; or
(3) sell, lease or otherwise transfer any of its property properties or assets to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries. However, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) preceding restrictions will not prohibitapply to encumbrances or restrictions existing under or by reason of:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, agreements as in effect at or entered into on the Effective Date Issue Date, including agreements governing Existing Indebtedness and Credit Facilities as in effect or entered into on the Issue Date, and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of such those agreements; provided that the amendments, modifications, restatements, modificationsrenewals, renewalsincreases, 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 Effective Date (as determined in good faith by the Borrower)Issue Date;
(2) [Reserved]this Indenture, the Notes, the Note Guarantees and the Notes Collateral Documents;
(3) encumbrances applicable law, rule, regulation or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoingorder;
(4) any instrument governing Indebtedness or Capital Stock or other agreement of a Person acquired by the Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition, which encumbrance or restriction pursuant to an agreement or instrument of a Person or relating is not applicable to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which (i) such Person was acquired by properties or merged, consolidated or otherwise combined with or into the Borrower or assets of any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each casePerson, other than Capital Stock or Indebtedness Incurred as consideration inthe Person, or to provide all the property or any portion assets of the funds utilized to consummatePerson, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such dateso acquired; provided that, for in the purposes case of Indebtedness, such Indebtedness was permitted by the terms of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall Indenture to be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Companyincurred;
(5) customary non-assignment provisions or transfer or subletting restrictions in leases, sub- leases, easements, contracts, licenses, sub-licenses, conveyance or contract for any encumbrance property 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower)asset;
(6) any encumbrance or restriction:
(a) that restricts obligations applicable to property acquired in a customary manner the sublettingordinary course of business, assignment or transfer of any property or asset that is subject to a leasepurchase money obligations, 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 mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary permitted or Indebtedness incurred under this Agreement to clauses (3) or (14) of the extent such encumbrances or restrictions definition of Permitted Debt, and Finance Lease Obligations that restrict the transfer of the property purchased 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 permitleased;
(7) any encumbrance agreement for the sale 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 other disposition of the assets of the joint venture;
(8) any encumbrance or restriction with respect to a Restricted Subsidiary (including the Capital Stock or any all or substantially all of its the property or assetsassets of that Restricted Subsidiary) imposed pursuant to an agreement entered into for that restricts distributions or transfer by that Restricted Subsidiary pending the direct sale or indirect other disposition (which limitation, in the case of a sale or disposition to a Person of all or substantially all the Capital Stock property or assets of such Restricted Subsidiary (or assets, is applicable only to the property or assets that are the subject to such restriction) pending the closing of such sale or dispositionagreement);
(8) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(9) customary Liens permitted to be incurred under Section 3.6 or existing by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Issuer or any of its Restricted Subsidiaries not otherwise prohibited by this Indenture;
(10) provisions limiting the disposition or distribution of assets or property in leases, licenses, joint venture agreements agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, limited liability company organizational documents and other similar agreements and instruments agreements, which limitation is applicable only to the property or assets that are the subject of such agreements;
(11) contracts with customers or suppliers or leases with lessors entered into in the ordinary course of business;
(10) encumbrances or business that impose customary restrictions arising or existing by reason of applicable law or any applicable ruleon cash, regulationCash Equivalents, governmental license or ordermarketable securities, 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 worth;
(12) agreements entered into governing Indebtedness or Capital Stock of Non-Guarantor Restricted Subsidiaries incurred in compliance with Section 3.2; provided that the Issuer determines in good faith that such encumbrances and restrictions (x) will not cause the Issuer to not have the funds necessary to pay the principal of or interest on the Notes and (y) are not materially more restrictive, taken as a whole, than is customary in comparable financings;
(13) agreements governing Hedging Obligations incurred in the ordinary course of businessbusiness and permitted to be incurred under Section 3.2; provided that the Issuer determines in good faith that such encumbrances and restrictions (x) will not cause the Issuer to not have the funds necessary to pay the principal of or interest on the Notes and (y) such restrictions are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions applicable to such Restricted Subsidiary than those contained in the agreements covered by clauses (1) or (2) of this paragraph;
(1214) any instrument governing any Indebtedness or Capital Stock of any Unrestricted Subsidiary as in effect on the date, if any, that such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary; provided that such encumbrance or restriction pursuant is not applicable to Currency Agreementsany Person, Interest Rate Agreements or Commodity Hedging Agreementsto the property or assets of any Person, other than such redesignated Restricted Subsidiary and its Subsidiaries and Affiliates (immediately prior to such redesignation) and its properties and assets;
(1315) any encumbrance restrictions in effect on the Issue Date that are contained in charter documents or restriction arising pursuant to an agreement or instrument shareholder agreements relating to any Restricted Subsidiary of the Issuer;
(16) agreements governing other Indebtedness or Capital Stock permitted to be Incurred subsequent to the Effective Date pursuant to incurred under Section 4.04 if 3.2; provided that the encumbrances and restrictions contained in any such agreement or instrument are not materially more restrictive, taken as a whole are not materially less favorable whole, with respect to the Lenders such dividend and other payment restrictions than (ia) the encumbrances and restrictions those contained in this Agreement or any Loan Document on the Effective Date, agreements covered by clauses (1) or (ii2) of this paragraph or (b) as is customary in comparable financings (as determined in good faith by a responsible financial or accounting officer of the Borrower) Issuer), and where, in the case of this sub-clause (iib), the Borrower Issuer determines at the time of incurrence of such Indebtedness or issuance of such Indebtedness Preferred Stock that such encumbrances or restrictions would not materially impair the Issuer’s ability to make payments of interest, principal or as otherwise required under the Notes when due (xas determined in good faith by a responsible financial or accounting officer of the Issuer);
(17) will not adversely affectrestrictions on cash or other deposits or net worth, which encumbrances or restrictions are imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under contracts entered into in the ordinary course of business;
(18) any material respectencumbrance or restriction arising in the ordinary course of business, not relating to any Indebtedness, that does not, individually or in the Borroweraggregate, materially detract from the value of the property of Issuer or any of its Restricted Subsidiaries, taken as whole, or adversely affect the Issuer’s ability to make principal or and interest payments under on the Loan Documents Notes, in each case, as and when they become due determined in good faith by a responsible financial or (y) such encumbrances and restrictions apply only if a default occurs in respect accounting officer of a payment or financial covenant relating to such Indebtednessthe Issuer;
(1419) any encumbrance or restrictions arising created in connection with any Purchase Money Note, other Indebtedness Qualified Securitization Financing or a Qualified Receivables Financing Facility that, in the good faith determination of an Officer or the Board of Directors of the BorrowerIssuer, are necessary or advisable to effect such Qualified Securitization Facility or Receivables FinancingFacility; orand
(20) arising under any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of an agreement or arrangement referred to in clauses (1), (2), (4), (6), (8), (12), (13), (14), (15), (16) any encumbrance and (18) above; provided that such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or restriction existing refinancing is not materially more restrictive, as determined in good faith by reason a responsible financial or accounting officer of any Lien permitted under Section 4.06the Issuer, 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 refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Parent shall not, and will shall not permit any of its Restricted Subsidiaries 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 (1x) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Borrower Parent or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Parent or any Restricted Subsidiary;
, (2y) make any loans or advances to the Borrower Parent or any Restricted Subsidiary; or
Subsidiary or (3z) sell, lease or transfer any of its property or assets Property to the Borrower 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) with respect to clauses (x), (y) and (z):
(A) any encumbrance or restriction pursuant to any Credit Facility or any other an agreement or instrument, in each case, in effect at or entered into on the Effective Issue Date, including the 2029 Notes Indenture and the Credit Agreement, or applicable law, rule, regulation or order;
(B) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by Parent and outstanding on such date;
(C) any encumbrance or restriction pursuant to applicable law and other customary conditions and restrictions contained in any agreement, document or instrument relating to the formation, operation and regulatory requirements or limitations related to a Captive Insurance Subsidiary;
(D) contracts or agreements for the sale of Property, including any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or Property of such Restricted Subsidiary;
(E) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(F) any limitation or prohibition on the disposition or distribution of Property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements, which limitation or prohibition is customary for such agreements;
(G) restrictions contained in any Qualified Receivables Transaction with respect to any Receivables Entity;
(H) customary provisions contained in leases, licenses and other similar agreements entered into in the ordinary course of business or consistent with past practice or industry norm;
(I) any encumbrance or restriction arising in the ordinary course of business, not relating to any Indebtedness, that does not, individually or in the aggregate, materially detract from the value of the Property of Parent and the Restricted Subsidiaries, taken as whole, or adversely affect the Issuer’s ability to make principal and interest payments on the Notes, in each case, as determined in good faith by Parent or the Issuer;
(J) secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.09 that limit the right of the debtor to dispose of the Property securing such Indebtedness;
(K) other Indebtedness, Disqualified Stock or Preferred Stock (i) of Parent or any Restricted Subsidiary that is a Subsidiary Guarantor or a Foreign Subsidiary or (ii) of any Restricted Subsidiary that is not a Subsidiary Guarantor or a Foreign Subsidiary so long as such encumbrances and restrictions contained in any agreement or instrument will not materially adversely affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined in good faith by the Issuer); provided that in the case of each of subclauses (i) and (ii), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date and pursuant to Section 4.03; and
(L) any encumbrances or restrictions imposed by any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of such agreementsthe contracts, instruments or obligations referred to in clauses (A) through (K) above; provided that the such amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are are, in the good faith judgment of Parent, not materially more restrictive, taken as a whole, restrictive with respect to such dividend and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrower);dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(2) [Reserved];with respect to clause (z) only:
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4A) 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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(6) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset Property that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including, without limitation, licenses of intellectual property) or other contract;; and
(bB) 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;
(ci) 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
purchase money obligations for Property acquired and (d) pursuant to the terms of any license, authorization, concession or permit;
(7ii) any encumbrance or restriction pursuant to contained in Capital Lease Obligations, any agreement governing Purchase Money Obligations and Capitalized Lease Obligations permitted under this AgreementIndebtedness, in each case, that impose encumbrances security agreements or restrictions on mortgages securing Indebtedness of a Restricted Subsidiary to the property so acquired or any extent such encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on restricts 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 Property subject to such restriction) pending the closing of such sale or disposition;
(9) customary provisions in leasesCapital Lease Obligations, 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 NoteIndebtedness, other Indebtedness security agreements 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 4.06mortgages.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 the Borrower Company or any of its Restricted Subsidiary Subsidiaries, or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary, provided it being understood that (xi) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock other Capital Stock shall be deemed not to be a restriction on the ability to make distributions on Capital Stock and (yii) the subordination of Indebtedness or other obligations shall be deemed not to be a restriction on the ability to pay such Indebtedness or other obligations);
(including 2) make any loans or advances to the application Company or any Restricted Subsidiary (it being understood that the subordination of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary, or any prohibition Subsidiary shall be deemed not to be a restriction on securing such the ability to make loans or advances made advances); or
(3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary, Subsidiary (it being understood that such transfers shall not be deemed to constitute such an encumbrance include any type of transfer described in clause (1) or restriction(2) of this Section 11.12(a)).
(b) Section 4.07(a11.12(a) will not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(1) any encumbrance contractual encumbrances or restriction restrictions pursuant to any Credit Facility the Financing Agreement, the First Lien Notes Indenture, the Second Lien Notes Indenture, the Financing Agreement Security Agreement, the Runoff Security Agreement and all other agreements and other documentation relating to or any other agreement governing the collection, disposition or instrumentadministration of WMMRC-Related Assets, the Convertible Preferred Stock and, in each case, all related documentation, and other agreements or instruments in effect at or entered into on the Effective Date Closing Date;
(2) this Agreement, the Notes 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 is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the 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 11.12(b) or this clause (4); provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith determination of such agreements; provided that the amendmentsSenior Management of the Company, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect than the encumbrances and restrictions contained the agreements and instruments referred to such dividend and other payment restrictions than those contained in those agreements on the Effective Date clauses (as determined in good faith by the Borrower1);
, (2) [Reserved];
or (3) encumbrances of this Section 11.12(b) on the Closing Date or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined merged with or into the Borrower Company or any a Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person whichever is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Companyapplicable;
(5) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing in the case of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (3) of Section 4.07(b)(111.12(a), Liens permitted to be Incurred under Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification 11.10 that limit the right of the debtor to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5); provided, however, that dispose of the encumbrances and restrictions with respect to assets securing such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the 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 Borrower)Indebtedness;
(6) any encumbrance or restriction:
(a) that restricts purchase money obligations for property acquired in a customary manner the subletting, assignment or transfer ordinary course 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 business and Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of Section 11.12(a) 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 ventureacquired;
(8) any encumbrance 7) contracts for the sale or restriction other disposition of assets, including customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Company pursuant to an agreement that has been entered into for the direct or indirect sale or disposition to a Person of all or substantially all a portion of the Capital Stock or assets of such Restricted Subsidiary Subsidiary;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the property or assets that are subject to such restriction) pending the closing ordinary course of such sale or dispositionbusiness;
(9) any customary provisions in leases, licenses, joint venture agreements subleases or licenses and other similar agreements and instruments entered into by the Company or any Restricted Subsidiary 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 regulation or order, or required by any regulatory authority or stock exchangeother Regulatory Requirement;
(11) any encumbrance customary supermajority voting provisions and other customary provisions with respect to the disposition or restriction on cash or distribution of assets, each contained in corporate charters, bylaws, stockholders’ agreements, limited liability company agreements, partnership agreements, and other deposits or net worth imposed by customers under agreements entered into similar agreements, in the ordinary course each case of businessa Restricted Subsidiary that is not a Wholly Owned Subsidiary;
(12) any agreement, instrument or Capital Stock of a Qualified Securitization Entity, or with respect to any Receivables, which encumbrance or restriction pursuant is not applicable to Currency Agreementsany Person, Interest Rate Agreements or Commodity Hedging Agreementsany assets, as applicable, other than such Qualified Securitization Entity or such Receivables;
(13) any encumbrance customary lock-up agreements entered into in connection with a proposed sale 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 IndebtednessCapital Stock;
(14) any encumbrance agreement or restrictions arising instrument that prohibits the payment or making of dividends or other distributions other than on a pro rata basis;
(15) customary provisions restricting dispositions of real property interests set forth in connection with any Purchase Money Note, reciprocal easement agreement; and
(16) other Indebtedness or a Qualified Receivables Financing Preferred Stock permitted to be Incurred pursuant to Section 11.09 that, in the good faith determination of an Officer or the Board of Directors of the BorrowerCompany are not materially more restrictive, are necessary taken as a whole, than those applicable to the Company in this Agreement or advisable the Financing Agreement on the Closing Date (which results in encumbrances or restrictions at a Restricted Subsidiary level comparable to effect such Qualified Receivables Financing; orthose applicable at the Company level under this Agreement or the Financing Agreement).
(15c) In each case set forth in Section 11.12(b) above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction existing by reason on a specified asset or property or group or type of any Lien permitted under Section 4.06assets or property may also apply to all improvements, repairs, additions, attachments and accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 to the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any other Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary, provided it being understood that (x) the priority of any Preferred Stock in receiving dividends 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), (yii) make any loans or advances to the Company or any other Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restriction.
advances) or (biii) Section 4.07(a) will not prohibit:
(1) transfer any encumbrance of its property or restriction pursuant assets to any Credit Facility the Company or any other agreement or instrument, Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of clause (i) any Loan Documents, or (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notesabove), except: (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4a) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the Issue Date, including pursuant to this Indenture, the Subsidiary Guarantees, the ABL Credit Facility, the European Credit Facility and the Rabobank Term Loan; (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 on or before Incurred by such Restricted Subsidiary prior to the date on which (i) such Person Restricted Subsidiary was acquired by the Company or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryCompany) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5c) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement or instrument effecting a refundingrefinancing, refunding or replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, to an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3the preceding clauses (a) or Section 4.07(b)(4(b) or this Section 4.07(b)(5) clause (an “Initial Agreement”c) or contained in any amendment, supplement restatement, modification, renewal, supplement, rewriting, replacement or other modification to refinancing of an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3the preceding clauses (a) or Section 4.07(b)(4(b) or this Section 4.07(b)(5clause (c); 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 Lenders Holders, taken as a whole whole, than the original encumbrances and restrictions contained in such agreements; (d) in the Initial Agreement or Initial Agreements to which such refinancing or amendmentcase of clause (iii) of this Section 3.6, supplement or other modification relates (as determined in good faith by the Borrower);
(6) any encumbrance or restriction:
restriction (a1) 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 (2) by virtue of any leasetransfer of, license agreement to transfer, option or other contract;
right with respect to, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (b3) 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 encumbrance or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges security agreements or other security agreements;
the Equity Interests in the owner of such property or in any Subsidiary of the Company that owns a direct or indirect Equity Interest in such owner and (c4) pursuant to customary ordinary course provisions restricting dispositions the assignability of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiarycontracts; or
(d) pursuant to the terms of any license, authorization, concession or permit;
(7e) 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;
; (9f) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity; (g) any customary provisions in leases, licenses, joint venture agreements subleases or licenses and other similar agreements and instruments entered into by the Company or any Restricted Subsidiary 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;
(12h) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements (x) other Indebtedness or Commodity Hedging Agreements;
(13) any encumbrance Preferred Stock of a Non-Guarantor Restricted Subsidiary; provided that such encumbrances 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 will not materially less favorable affect the Company’s ability to the Lenders than (i) the encumbrances make anticipated principal and restrictions contained in this Agreement or any Loan Document interest payments on the Effective Date, or (ii) is customary in comparable financings Securities (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 BorrowerCompany) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, are necessary or advisable in each case permitted to effect such Qualified Receivables Financingbe Incurred pursuant to Section 3.3; or
and (15i) any encumbrance or restriction existing by reason operation of any Lien permitted under Section 4.06applicable law.
Appears in 1 contract
Sources: Indenture (Smithfield Foods Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 to the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
, (2ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
Subsidiary or (3iii) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary, provided that except (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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4a) 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 and the Senior Credit Agreement in effect on the date hereof); (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 Incurred by a Person, entered into Restricted Subsidiary on or before prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiaryin contemplation thereof) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5c) any encumbrance or restriction with respect to a Restricted Subsidiary 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (a) or (b) of this Section 4.07(b)(43.5 or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this Section 4.07(b)(53.5 or this clause (c); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument amendment are no less favorable in any material respect to the Lenders taken as a whole Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in clauses (a) and (b); (d) in the Initial Agreement or Initial Agreements to which such refinancing or amendmentcase of clause (iii) above, supplement or other modification relates (as determined in good faith by the Borrower);
(6) any encumbrance or restriction:
restriction (aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
, (bB) 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 encumbrance or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements;
; provided that such mortgage, pledge or other security agreement is permitted under this Indenture or (cC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary; or
(de) pursuant to purchase money obligations for property acquired in the terms ordinary course 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, business that impose encumbrances or restrictions of the nature described in clause (iii) above on the property so acquired acquired; (f) any Purchase Money Note or any encumbrance other Indebtedness or restriction pursuant contractual requirements Incurred with respect to a joint venture agreement that imposes restrictions on Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the transfer good faith determination of the assets Board of the joint venture;
Directors, are necessary to effect such Qualified Receivables Transaction; (8) g) 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;
; and (9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10h) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license regulation 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 1 contract
Sources: Indenture (Sather Trucking Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower Company or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Company (2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 other Capital Stock shall be deemed to not be a restriction on the ability to pay dividends or make other distributions on Capital Stock), (yb) the subordination of (including the application of make any standstill requirements to) loans or advances made to the Borrower Company or (c) transfer any Restricted Subsidiary to other Indebtedness Incurred by the Borrower of its property or any Restricted Subsidiary, or any prohibition on securing such loans or advances made assets to the Borrower or any Restricted SubsidiaryCompany, shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 clauses (a), (b) and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrowerc);,
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4A) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the Issue Date, including the Revolving Credit Agreement or the Delayed Draw Credit Agreement;
(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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryCompany) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5C) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(34.05(1)(A) or Section 4.07(b)(4(B) or this clause (C) or contained in any amendment to an agreement referred to in Section 4.07(b)(54.05(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 not materially less favorable in any material respect to the Lenders favorable, taken as a whole whole, to the Company (as determined by the Board of Directors in its good faith judgment) than the encumbrances and restrictions with respect to such Restricted Subsidiary 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 Borrower)predecessor agreements;
(6D) any encumbrance or restriction: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 (including by merger or consolidation) pending the closing of such transaction;
(aE) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(F) restrictions on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into in the ordinary course of business, including such restrictions imposed by customers or insurance, surety or bonding companies;
(G) any encumbrance or restriction with respect to a Foreign Subsidiary entered into the ordinary course of business or pursuant to the terms of Indebtedness that restricts was Incurred by such Foreign Subsidiary in compliance with the terms of this Indenture;
(H) provisions contained in any license, permit or other accreditation with a regulatory authority entered into in the ordinary course of business;
(I) provisions in agreements or instruments that prohibit the payment or making of dividends or other distributions other than on a pro rata basis;
(J) customary manner supermajority voting provisions and other customary provisions with respect to the sublettingdisposition or distribution of earnings or other assets, assignment each contained in corporate charters, bylaws, stockholders’ agreements, limited liability company agreements, partnership agreements, joint venture agreements and other similar agreements entered in the ordinary course of business of the Company and its Restricted Subsidiaries;
(K) any encumbrance or restriction contained in agreements governing or relating to Royalty Interests made in the ordinary course of business;
(L) encumbrances or restrictions existing under or by reason of other Indebtedness (including Hedging Obligations), Disqualified Stock or Preferred Stock permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.03 and either (1) the provisions relating to such encumbrance or restriction contained in such Indebtedness, Disqualified Stock or Preferred Stock are not materially less favorable to the Company, taken as a whole, as determined by the Board of Directors in good faith, than the provisions contained in the Revolving Credit Agreement as in effect on the Issue Date or (2) any such encumbrance or restriction contained in such Indebtedness, Disqualified Stock or Preferred Stock does not prohibit (except upon a default or an event of default thereunder) the payment of dividends in an amount sufficient, as determined by the Board of Directors in good faith, taking into account other available sources, to make scheduled payments of cash interest on the Securities when due; and
(M) any encumbrance or restriction arising pursuant to a Cash Management Arrangement;
(2) with respect to clause (c) only,
(A) any encumbrance or restriction consisting of customary nonassignment provisions in leases, licenses or similar agreements to the extent such provisions restrict the transfer of any property or asset that is subject to a the lease, license or similar contract, agreement or the assignment or transfer of any lease, license or other contractproperty subject thereto;
(bB) any encumbrance or restriction contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property or assets subject to such security agreements or mortgages, pledges or other security agreements;
(cC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary; orand
(dD) pursuant to the terms of any license, authorization, concession or permit;
(7) any encumbrance or restriction pursuant to Purchase Money Obligations encumbrances and Capitalized Lease Obligations permitted under this Agreement, restrictions contained 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 contracts entered into in the ordinary course of business;
(10) encumbrances business not relating to any Indebtedness, and that do not, individually or restrictions arising in the aggregate, detract from the value, property or existing by reason assets of applicable law the Company or any applicable ruleRestricted Subsidiary in any manner material to the Company and its Restricted Subsidiaries taken as a whole. In each case set forth above, regulationnotwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, governmental license or order, or required by any regulatory authority or stock exchange;
(11) any an encumbrance or restriction on cash a specified asset or other deposits property or net worth imposed by customers under agreements entered into in the ordinary course group or type of business;
(12) any encumbrance assets or restriction pursuant property may also apply to Currency Agreementsall improvements, Interest Rate Agreements repairs, additions, attachments and accessions thereto, assets and property affixed 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 appurtenant thereto, parts, replacements 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 substitutions therefor, and restrictions contained in this Agreement or any Loan Document on the Effective Dateall products and proceeds thereof, or (ii) is customary in comparable financings (as determined in good faith by the Borrower) including dividends, distributions, interest 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 increases 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 4.06thereof.
Appears in 1 contract
Sources: Indenture (U.S. Concrete, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower Company or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Company, (2b) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets to the Borrower or any Restricted SubsidiaryCompany, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction pursuant to any contained in the Credit Facility or any other agreement or instrument, in each case, Agreement in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower)Issue Date;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction pursuant to applicable law or any applicable rule, regulation or order or an agreement in effect or instrument of entered into on the Issue Date;
(3) 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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryCompany) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or 62 53
(4) any such Subsidiary shall be deemed acquired encumbrance or assumed by restriction consisting of customary non-assignment provisions in leases governing leasehold interests to the Borrower extent such provisions restrict the transfer of the lease or any Restricted Subsidiary when such Person becomes the Successor Companyproperty leased thereunder;
(5) any encumbrance or restriction pursuant to an agreement or instrument effecting a refundingin the case of clause (c) above, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or restrictions contained in any amendmentsecurity agreements, supplement participation agreements or other modification to an agreement referred to in Section 4.07(b)(1)similar financing documents, Section 4.07(b)(3) leases or Section 4.07(b)(4) or this Section 4.07(b)(5); provided, however, that the encumbrances and restrictions mortgages securing Indebtedness of a Restricted Subsidiary (including with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances Capital Lease Obligations, Synthetic Lease Financings 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 Borrower);
(6Attributable Debt) 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 mortgagessecurity agreements, pledges participation agreements or other security agreementssimilar financing documents, leases or mortgages;
(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;
(76) 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;
(117) 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;
(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 8) encumbrances and restrictions contained in agreements evidencing other Indebtedness of Restricted Subsidiaries permitted to be Incurred subsequent to the Effective Issue Date pursuant to the provisions of Section 4.04 if 4.03; provided, however, that 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 in the event of and during the continuance of a default occurs contained in respect of a payment such Indebtedness or financial covenant relating to such Indebtednessagreement;
(149) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business; and
(10) any encumbrance encumbrances or restrictions arising imposed by any amendments, modifications, restatements, renewals, increases, supplements or Refinancings of the contracts, instruments or obligations referred to in connection with any Purchase Money Noteclauses (1) through (9) above; provided, other Indebtedness however, that such amendments, modifications, restatements, renewals, increases, supplements or a Qualified Receivables Financing thatRefinancings are, in the good faith determination judgment of an Officer or the Board of Directors of Directors, no more restrictive with respect to such dividend and other payment or transfer restrictions than those contained 63 54 in the Borrowerdividend or other payment or transfer restrictions prior to such amendment, are necessary modification, restatement, renewal, increase, supplement or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06Refinancing.
Appears in 1 contract
Sources: Indenture (Travelcenters Realty Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective effective, or enter into any agreement with any Person that would cause to become effective, any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
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 to the Borrower or any Restricted Subsidiary Stock, or pay any Indebtedness or other obligations owed obligation owed, to the Borrower Company or any other Restricted Subsidiary;
, (2b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary; or
Subsidiary or (3c) sell, lease or transfer any of its property or assets Property to the Borrower Company or any other Restricted Subsidiary. Such limitation will not apply (1) with respect to clauses (a), 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(aand (c), to encumbrances and restrictions (i) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing existence under or by reason of any agreements (inot otherwise described in clause (iii)) any Loan Documentsin effect on the Issue Date, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) and existing at such Person Restricted Subsidiary at the time it became a Restricted Subsidiary (if such encumbrance or restriction was not created in each case, other than Capital Stock connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or was mergedCompany, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any encumbrance or restriction pursuant to an (x) the Credit Facility as in effect on the Issue Date and (y) any agreement or instrument effecting a refundingwhich amends, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refundsrefinances, refinances replaces or replacesrefunds the Credit Facility, an agreement or instrument referred to PROVIDED, HOWEVER, that in Section 4.07(b)(1the case of this subclause (y), Section 4.07(b)(3) such restrictions or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 holders of the Borrower Notes than those restrictions 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 Credit Facility as in effect on the Issue Date; PROVIDED, FURTHER, HOWEVER, that in the case of any licensesubclauses (x) and (y), authorizationthe provisions of the Credit Facility (A) permit (whether explicitly or as a result of the relative maturities of the Credit Facility and the Notes) distributions to the Company for the purpose of, concession and in an amount sufficient to fund, the payment of principal due at Stated Maturity and interest in respect of the Notes (PROVIDED, in either case, that such payment is due or permit;
to become due within 30 days from the date of such distribution) at a time when there does not exist an event which after notice or passage of time or both would permit the lenders under the Credit Facility to declare all amounts thereunder due and payable, and (7B) provide that in no event shall 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 the Credit Facility prohibit distributions for Indebtedness on the property so acquired Notes for more than 180 days in any consecutive 360 day period, unless (1) there exists a default under the Credit Facility resulting from any payment default under the Credit Facility when due or any (2) the maturity of the Credit Facility has been accelerated, or (iv) which result from the extension renewal, refinancing, replacement, refunding or amendment of an agreement referred to in the immediately preceding clauses (1)(i) and (ii) above and in clauses (2)(i) and (ii) below, PROVIDED, such encumbrance or restriction pursuant is no more restrictive 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 is not materially less favorable to the Lenders holders of Notes than those under or pursuant to the agreement evidencing the Indebtedness so extended, renewed, refinanced, replaced, refunded or amended, and (2) with respect to clause (c) only, to (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 relating to Indebtedness that is permitted to be Incurred and secured pursuant to Sections 4.11 and 4.16 that limits the right of the debtor to dispose of the assets or Property securing such Indebtedness, (ii) any Lien permitted under Section 4.06encumbrance or restriction in connection with an acquisition of Property, so long as such encumbrance or restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such acquisition, (iii) customary provisions restricting subletting or assignment of leases of the Company or any Restricted Subsidiary and customary provisions in other agreements that restrict assignment of such agreements or rights thereunder or (iv) customary restrictions contained in asset sale agreements limiting the transfer of such assets pending the closing of such sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(1) pay dividends dividends, in cash or otherwise, or make any other distributions on or in cash or otherwise on respect of its Capital Stock to the Borrower Company or any other Restricted Subsidiary or Subsidiary,
(2) pay any Indebtedness Debt or other obligations obligation owed to the Borrower Company or any other Restricted Subsidiary;,
(23) make any loans or advances to the Borrower Company or any other Restricted Subsidiary; , or
(34) sell, lease or transfer any of its property or assets Property to the Borrower 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) The foregoing limitations will not prohibitapply:
(1) any encumbrance or restriction pursuant with respect to any Credit Facility or any other agreement or instrumentSection 4.13(a)(1)(2)(3) and (4), in each case, to restrictions which are:
(A) in effect at or entered into on the Effective Issue Date and (as such restrictions may be amended from time to time; provided that any amendmentssuch amendment is not materially more restrictive as to such Restricted Subsidiary);
(B) imposed by the Notes or this Indenture, restatementsor by indentures governing other Debt the Company or a Subsidiary Guarantor Incurs (and, modificationsif such Debt is Guaranteed, renewals, supplements, refundings, replacements or refinancings by the guarantors of such agreementsDebt) ranking on a parity with the Notes or the Subsidiary Guarantees; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings restrictions imposed by such indentures are not materially no more restrictive, taken as restrictive than the restrictions imposed by this Indenture;
(C) imposed by a whole, Credit Facility with respect to such dividend and other payment restrictions than those contained in those agreements Debt permitted to be Incurred on or subsequent to the Effective Date (as determined in good faith by the Borrowerdate hereof pursuant to Section 4.09(b)(1);
(2D) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related relating to the foregoing;
(4) any encumbrance or restriction pursuant to an agreement or instrument Debt 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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person existing at the time it became a Restricted Subsidiary (if such restriction was not created in each case, other than Capital Stock connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower or any a Restricted Subsidiary (as such restrictions may be amended from time to time in a manner not materially more restrictive as to such Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5E) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing that result from the Refinancing of Indebtedness Debt Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(34.13(b)(1)(A),(B) or Section 4.07(b)(4(D) or this Section 4.07(b)(5)above; provided, however, that the encumbrances and restrictions with respect to provided such Restricted Subsidiary contained in any such agreement or instrument are restriction is no less favorable in any material respect to the Lenders Holders of the Notes than those restrictions under the agreement evidencing the Debt so Refinanced when taken as a whole than whole;
(F) restrictions on cash or other deposits or net worth imposed by leases or other agreements entered into in the ordinary course of business;
(G) any encumbrances or restrictions required by any foreign or U.S. governmental, local or regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses in connection with any development grant made or other assistance provided to the Company or any Restricted Subsidiary by such governmental authority;
(H) customary provisions in joint venture or similar agreements or other arrangements with minority investors in Restricted Subsidiaries and customary provisions in Debt incurred by Restricted Subsidiaries organized outside the United States; provided, however, that such encumbrance or restriction is applicable only to such Restricted Subsidiary; and provided, further, that the Company determines that any such encumbrance or restriction will not materially affect the ability of the Company to make any anticipated payments of principal or interest on the Notes;
(I) customary restrictions contained in asset sale, stock sale, merger and other similar agreements limiting the Initial Agreement transfer, disposition or Initial Agreements to which distribution of Property pending the closing of such refinancing or amendmentsale, supplement or other modification relates (as determined in good faith by the Borrower);
(6) including 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 imposed with respect to a such 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 dispose of all or substantially all the Capital Stock or assets of such Restricted Subsidiary Subsidiary;
(J) customary restrictions imposed on the transfer of copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the property or assets that are subject to such restriction) pending the closing assignment of such agreements or any rights thereunder or in leases governing leasehold interests;
(K) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions of assets (including Capital Stock) by that Restricted Subsidiary pending its sale or other disposition;
(9L) restrictions on Debt Incurred by Non-U.S. Subsidiaries; provided that such restrictions are then customary for Debt of such type Incurred in such jurisdiction; or
(M) restrictions resulting from any U.S. or foreign law, rule, regulation or order applicable to the Company or any Restricted Subsidiary.
(2) with respect to Section 4.13(a)(4) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Section 4.11 that limit the right of the debtor to dispose of the Property securing such Debt;
(B) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary, so long as such restrictions relate solely to the Property so acquired and were not created in connection with or in anticipation of such acquisition;
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in leasesother agreements that restrict assignment of such agreements or rights thereunder;
(D) imposed by virtue of any transfer of, licensesagreement to transfer, joint venture agreements and other similar agreements and instruments entered into option or right with respect to or Lien on any Property of the Company or the relevant Restricted Subsidiary not otherwise prohibited by this Indenture; or
(E) imposed under any Purchase Money Debt or Capital Lease Obligation 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 business with respect only to the Effective Date pursuant to Section 4.04 if Property 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 4.06subject thereof.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower Company or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Company, (2b) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets to the Borrower or any Restricted SubsidiaryCompany, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1i) any encumbrance or restriction pursuant to any an agreement, including the Credit Facility or any other agreement or instrument, in each caseAgreement and the Note Indenture, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower)Issue Date;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) 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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any of its Restricted Subsidiary, Subsidiaries (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower Company or any of its Restricted SubsidiarySubsidiaries) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any encumbrance or restriction pursuant to an agreement (A) evidencing Indebtedness Incurred without violation of this Indenture or instrument (B) effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (i) or (ii) of this Section 4.07(b)(44.05 or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this Section 4.07(b)(54.05 or this clause (iii); provided, however, that in the case of clauses (A) and (B), the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument amendment are no less favorable more restrictive in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendmentrespect, supplement or other modification relates (as determined in good faith by the Borrower)Board of Directors, than encumbrances and restrictions with respect to such Restricted Subsidiary contained in agreements of such Restricted Subsidiary in effect at, or entered into on, the Issue Date;
(6iv) any such encumbrance or restriction:
(a) that restricts in a restriction consisting of customary manner the subletting, non assignment or transfer subletting provisions contained in leases and other contracts entered into in the ordinary course 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 contractbusiness and consistent with past practices;
(bv) in the case of clause (c) above, restrictions contained in mortgagessecurity agreements, pledges mortgages or other security agreements permitted under this Agreement or similar documents 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, mortgages or similar documents;
(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;
(7vi) 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;
(13vii) 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;applicable law; and
(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
(15viii) any encumbrance or restriction existing by reason consisting of any restriction on the sale or other disposition of assets or property securing Indebtedness as a result of a Lien permitted to be Incurred under Section 4.06this Indenture on such asset or property.
Appears in 1 contract
Sources: Indenture (Mediq Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower Company or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any a Restricted Subsidiary;
, (2b) make any loans or advances to the Borrower Company or any a Restricted Subsidiary; or
Subsidiary or (3c) sell, lease or transfer any of its property or assets to the Borrower Company or any a 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 clauses (a), (b) and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrowerc);,
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryCompany) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5C) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(44.05(1)(A) or this clause (C) or contained in any amendment to an agreement referred to in Section 4.07(b)(54.05 (1)(A) 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 in any material respect not materially more restrictive to the Lenders Holders, taken as a whole 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 amendment, supplement or other modification relates (as determined in good faith by the Borrower);
(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 predecessor agreements;
(cD) 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;
(9E) customary provisions any encumbrance or restriction pursuant to the terms of any agreement entered into by a Receivables Subsidiary in leasesconnection with any Qualified Receivables Transaction; provided, licenseshowever, joint venture agreements and that such encumbrance or restriction applies only to a Receivables Subsidiary;
(F) any encumbrance or restriction consisting of requirements with respect to cash or other similar agreements and instruments deposits or net worth imposed by customers or required by insurance, surety or bonding companies, in each case, under contracts 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
(15G) any encumbrance or restriction existing under, by reason of or with respect to customary supermajority voting provisions and customary provisions with respect to the disposition or distribution or assets or property, in each case, contained in joint venture agreements; and
(H) any Lien permitted under Section 4.06encumbrance or restriction existing under, by reason of or with respect to credit facilities entered into by Foreign Subsidiaries, provided that such encumbrances or restrictions are effective only after the occurrence and during the continuance of a material default under, or of an event which, with the lapse of time or the giving of notice or both would constitute a material event of default under, such credit facilities; and
(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; and
(C) any encumbrance or restriction with respect to property acquired by the Company or a Restricted Subsidiary in effect at the time of such acquisition, so long as such restriction or encumbrance relates solely to the property acquired and was not created in anticipation of such acquisition.
Appears in 1 contract
Sources: Indenture (Columbus McKinnon Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries 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 to the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries;
(2b) make any loans or advances to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries; or
(3c) sell, lease or transfer any of its property or assets to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1i) any encumbrance or restriction pursuant to any Credit Facility applicable law or any other an agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower)Closing Date;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) 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 on or before Incurred by such Restricted Subsidiary prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Issuer (ii) such agreement or instrument is assumed by the 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, 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryIssuer) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (c)(i) or (c)(ii) of this Section 4.07(b)(44.05 or this clause (iii) or contained in any amendment to an agreement referred to in clause (c)(i) or (c)(ii) of this Section 4.07(b)(54.05 or this clause (iii); providedPROVIDED, howeverHOWEVER, 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 Lenders taken as a whole Holders 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 Borrower)predecessor agreements;
(6iv) in the case of clause (c), any encumbrance or restriction:
(a1) 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;; or
(b2) 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 encumbrance or restrictions restrict restriction restricts the transfer of the property or assets subject to such mortgages, pledges or other security agreements;
(cv) 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 Subsidiary, any of its property or assets) 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 such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(9vi) customary provisions any encumbrance or restriction relating to Purchase Money Indebtedness or Capitalized Lease Obligations for property acquired in leasesthe ordinary course of business that imposes restrictions on the ability of the Issuer or a Restricted Subsidiary to sell, licenses, joint venture agreements and lease or transfer the acquired property to the Issuer or its Restricted Subsidiaries;
(vii) restrictions on cash or other similar agreements and instruments deposits imposed by customers under contracts entered into in the ordinary course of business;; and
(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;
(11viii) any encumbrance or restriction on cash or contained in joint venture agreements and other deposits or net worth imposed by customers under similar 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 business and restrictions contained in any customary for 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 types 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 4.06agreements.
Appears in 1 contract
Sources: Indenture (Acs Infosource Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 of the Company to:
(1) pay dividends or make any other distributions in cash to the Company or otherwise any of its Restricted Subsidiaries on its Capital Stock to the Borrower or any Restricted Subsidiary Stock, or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary, Subsidiaries; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to the payment of dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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 be a restriction on the ability to make distributions on Capital Stock;
(2) make loans or restrictionadvances to the Company or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) However, the restrictions in Section 4.07(a3.4(a) will not prohibitapply to encumbrances or restrictions existing under or by reason of:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, agreements governing Existing Indebtedness as in effect at or entered into on the Effective Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of such those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrower)Issue Date;
(2) [Reserved]this Indenture, the Notes (and any additional Notes), the Subsidiary Guarantees, the Collateral Agency Agreement and the Security Documents;
(3) encumbrances any future Liens that may be permitted to be granted under, or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 incurred not in each caseviolation of, any related security documents, escrow arrangements or other documents related to the foregoingprovisions of this Indenture;
(4) agreements governing other Indebtedness or Preferred Stock permitted to be incurred or issued under the provisions of Section 3.2 and any encumbrance amendments, restatements, modifications, renewals, supplements, refundings, replacements or restriction pursuant to refinancings of those agreements; provided that the encumbrances or restrictions contained therein are, in the good faith judgment of 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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 officer of the funds utilized Company not reasonably likely to consummate, have a material adverse effect on the transaction or series ability of related transactions pursuant the Company to which such Person became a Restricted Subsidiary or was acquired by make required payments on the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor CompanyNotes;
(5) applicable law or any applicable rule, regulation, order, approval, license, permit or similar restriction;
(a) any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction pursuant relates only to an agreement the property or assets so acquired and is not and was not created in anticipation of such acquisition, and (b) any instrument effecting governing Indebtedness or Capital Stock of a refundingPerson acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), replacement which encumbrance or refinancing of Indebtedness Incurred pursuant torestriction is not applicable to any Person, or that otherwise extendsthe properties or assets of any Person, renewsother than the Person, refundsor the property or assets of the Person, refinances so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5)refinancings thereof; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or instrument are refinancings are, in the good faith judgment of an officer of the Company, no less favorable in any material respect to the Lenders more restrictive, taken as a whole whole, than those in effect on the encumbrances and restrictions contained date of the acquisition; provided further, that, in the Initial Agreement or Initial Agreements to which case of Indebtedness, such refinancing or amendment, supplement or other modification relates (as determined in good faith Indebtedness was permitted by the Borrower);
(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 permitthis Indenture to be incurred;
(7) any encumbrance customary non-assignment provisions in contracts, agreements, licenses and leases entered into in the ordinary course of business;
(8) purchase money obligations, security agreements or restriction pursuant to Purchase Money Obligations mortgage financings for property acquired in the ordinary course of business and Capitalized Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired purchased or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer leased of the assets nature described in clause (3) of the joint ventureSection 3.4(a);
(8) 9) 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 such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(910) customary agreements relating to secured Indebtedness otherwise permitted to be incurred pursuant to Section 3.2 and not in violation of Section 3.6, that limit the right of the debtor to dispose of assets securing such Indebtedness;
(11) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of an officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(12) provisions with respect to the disposition or distribution of assets in leases, licenses, joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business or with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(13) encumbrances or restrictions contained in, or in respect of, Hedging Obligations incurred in the ordinary course of business and instruments permitted under this Indenture;
(14) encumbrances or restrictions on cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(1015) encumbrances any instrument governing Indebtedness or restrictions arising Capital Stock of a Foreign Subsidiary; provided that such Indebtedness or existing Capital was otherwise permitted by reason the terms of applicable law this Indenture to be incurred or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchange;issued; and
(1116) any encumbrance restrictions on property received in connection with a sale or restriction on cash or other deposits or net worth imposed by customers under agreements entered into issuance of Equity Interests in a Permitted Water Subsidiary that limit the ordinary course use of business;
such property in accordance with clause (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 definition of any Lien permitted under Section 4.06Asset Sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or (3) transfer any of its property or assets to the Company or any Restricted Subsidiary, 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.
(b) The provisions of Section 4.07(a3.6(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of : (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) 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 Subsidiary Guarantee, the Collateral Documents, the Intercreditor Agreement, the ABL Credit Agreement, the ABL Loan Documents, the Term Loan Credit Agreement and the Term Loan Documents; (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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into in contemplation of the Borrower or any Restricted Subsidiarytransaction) and outstanding on such date; provided thatdate provided, for that any such encumbrance or restriction shall not extend to any assets or property of the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any other Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(6) any encumbrance or restriction:assets
(a) that restricts purchase money obligations for property acquired in a customary manner the subletting, assignment or transfer ordinary course 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;
business and (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 AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of Section 3.6(a) on the property so acquired or acquired; (vi) 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;
; (9vii) customary net worth provisions in leases, licenses, joint venture agreements leases and other similar agreements and instruments entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
; and (10viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license regulation 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 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any of its Restricted Subsidiary;
Subsidiaries, (2b) make any loans or advances to the Borrower Company or any of its Restricted Subsidiary; or
Subsidiaries or (3c) sell, lease or transfer any of its property or assets to the Borrower Company or any of its Restricted SubsidiarySubsidiaries, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1i) any encumbrance or restriction pursuant to any Credit Facility applicable law or any other an agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower)Closing Date;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) 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 on or before Incurred by such Restricted Subsidiary prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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, in contemplation of, 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 otherwise acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryCompany) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (i) or (ii) of this Section 4.07(b)(44.05 or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this Section 4.07(b)(54.05 or this clause (iii); 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 favorable, in any material respect the aggregate, to the Lenders taken as a whole Holders 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 Borrower)predecessor agreements;
(6iv) in the case of clause (c), any encumbrance or restriction:
restriction (a1) 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, contract or the assignment or transfer of any lease, license or other contract;
(b2) 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 encumbrance or restrictions restrict restriction restricts the transfer of the property or assets subject to such mortgages, pledges or other security agreements;
(cv) 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 Subsidiary, any of its property or assets) 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 such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;; and
(9vi) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course case of business;
clause (10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rulec), 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 Purchase Money Indebtedness permitted to be that is Incurred subsequent to the Effective Closing Date pursuant to in compliance with 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 4.064.03.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will not, and will not permit any of its Restricted 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 Borrower or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Secured Notes Indenture and the New Senior Guaranteed NotesSecured Notes Indenture, (iii) the Existing Senior Notes Indentures and the Existing Notes, Senior Notes Indenture or (iv) the Existing Cablevision Notes Indentures Loan Escrow Agreement, the SSN Escrow Agreement and the Existing Cablevision Notes, and (v) the Intercreditor Agreement and any Additional Intercreditor SN Escrow Agreement, including in each case, any related security documents, escrow arrangements or other documents related to the foregoing;
(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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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, together with the security documents associated therewith, if any, as in effect on or immediately prior to the Closing 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 1 contract
Sources: Credit Agreement (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Borrower, (2b) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets to the Borrower or any Restricted SubsidiaryBorrower, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 clauses (a), (b) and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrowerc);,
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4A) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the Closing Date (including the Other Credit Agreement, this Agreement, the Third Lien Notes Indenture, the Third Lien Notes, the Third Lien Note Documents, the Security Documents and the Intercreditor Agreements);
(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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryBorrower) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5C) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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;
(9D) customary provisions any encumbrance or restriction with respect to contractual requirements of a Receivables Subsidiary in leasesconnection with a Qualified Receivables Transaction; provided that any such encumbrances or restrictions apply only to such Receivables Subsidiary;
(E) restrictions on cash or other deposits imposed by customers, licenses, joint venture agreements and other similar agreements and instruments suppliers or landlords under contracts entered into in the ordinary course of business;
(10F) 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[Reserved];
(11G) any encumbrance or restriction on cash or customary provisions in joint venture agreements and other deposits or net worth imposed by customers under similar agreements entered into in the ordinary course of business;business that restrict the transfer of ownership interests in such joint venture; and
(12H) any encumbrance or restriction pursuant contained in any Indebtedness Incurred by a Foreign Subsidiary in accordance with this Agreement to Currency Agreements, Interest Rate Agreements the extent such encumbrance or Commodity Hedging Agreements;restriction applies only to the assets of such Foreign Subsidiary; and
(132) with respect to clause (c) only,
(A) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent consisting of customary nonassignment provisions in leases governing leasehold interests to the Effective Date pursuant to Section 4.04 if extent such provisions restrict the encumbrances and restrictions contained in any such agreement transfer of the lease 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;property leased thereunder; and
(14B) 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; and
(3) any encumbrances or restrictions arising of the type referred to in connection with clauses (a), (b) and (c) above imposed by any Purchase Money Noteamendments or refinancings of the contracts, other Indebtedness instruments or a Qualified Receivables Financing thatobligations referred to in paragraphs (1) and (2) above; provided, however that such amendments or refinancings are, in the good faith determination judgment of an Officer or the Board of Directors of the Borrower, are necessary no more restrictive with respect to such dividend and other restrictions than those contained in the dividend or advisable other restrictions prior to effect such Qualified Receivables Financing; or
(15) any encumbrance amendment or restriction existing by reason of any Lien permitted under Section 4.06refinancing.
Appears in 1 contract
Sources: Loan and Security Agreement (Commercial Vehicle Group, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) . The preceding provisions will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4a) any encumbrance or restriction pursuant to an agreement in effect at or instrument of entered into on the date hereof (including, without limitation, pursuant hereto);
(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 Incurred by a Person, entered into Restricted Subsidiary on or before prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiaryin contemplation thereof) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5c) any encumbrance or restriction with respect to a Restricted Subsidiary 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (a) or Section 4.07(b)(4(b) of this paragraph or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this Section 4.07(b)(5paragraph or this clause (c); providedPROVIDED, howeverHOWEVER, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument amendment are no less favorable in any material respect to the Lenders taken as a whole more restrictive than the those encumbrances and restrictions contained in the Initial Agreement or Initial Agreements such agreements referred to which such refinancing or amendmentin clauses (a) and (b), supplement or other modification relates (as determined in good faith by the Borrower)above;
(6d) in the case of clause (3), above, any encumbrance or restriction:
(ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(bii) contained in mortgages, pledges or other security agreements permitted under this Agreement or securing Indebtedness of the Borrower 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;; PROVIDED that such mortgage, pledge or other security agreement is permitted under this Indenture; or
(ciii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary; or
(d) pursuant to the terms of any license, authorization, concession or permit;
(7e) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement, 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), above, 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 ventureacquired;
(8) f) 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;; and
(9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10g) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license regulation 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 1 contract
Sources: Indenture (Preem Holdings Ab Publ)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will On and after the Escrow Release Date, the Issuer shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower Issuer or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
, (2b) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
Subsidiary or (3c) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary, except:
(i) with respect to clauses (a), (b) and (c):
(A) any encumbrance or restriction pursuant to (i) an agreement in effect at or entered into on the Escrow Release Date (including the Credit Agreement in effect on the Escrow Release Date, the Additional Bridge Facility in effect on the Escrow Release Date, the 2023 Notes and the related guarantees, the 2023 Notes Indenture, this Indenture, the Notes and the Subsidiary Guarantees and, in each case, any related documentation (including any collateral or security documents or intercreditor agreement) and Hedging Obligations) or similar encumbrances or restrictions contained in any future Credit Facilities or Hedging Obligations of or guaranteed by the Issuer and (ii) any exchange notes and related exchange guarantees to be issued in exchange for the Initial Notes and the Subsidiary Guarantees pursuant to the Registration Rights Agreement and similar restrictions contained in the documentation entered into in connection with any future debt securities issued or guaranteed by the Issuer;
(B) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any contractual obligation binding on such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Issuer (other than contractual obligations as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Issuer) and outstanding on such date;
(C) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Sections 4.05(i)(A) or (B) or this clause (C) or contained in any amendment to an agreement referred to in Section 4.05(i)(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 no less favorable to the Issuer or any Restricted Subsidiary (as reasonably determined by the Issuer in good faith) than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;
(D) any encumbrance or restriction with respect to (i) 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 or (ii) a business unit, division, product line or line of business or other assets in a transaction permitted under Section 4.06, in each case pending the closing of such sale or disposition;
(E) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(F) provisions contained in any approval, license or permit with a regulatory authority, in each case entered into in the ordinary course of business;
(G) restrictions on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into in the ordinary course of business, including such restrictions imposed by customers or insurance, surety or bonding companies, and customary provisions in leases, subleases, licenses, sublicenses, service agreements, product sales, asset sale agreements and other contracts restricting the assignment thereof, in each case entered into in the ordinary course of business;
(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 license, permit or other accreditation with a regulatory authority entered into in 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 joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business and any provisions in joint venture agreements in effect at or entered into on the Escrow Release Date;
(L) any encumbrance or restriction contained in the terms of any agreement under which Indebtedness is permitted to be Incurred after the Escrow Release Date pursuant to Section 4.03 if (x) the Issuer reasonably determines in good faith 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 Issuer’s ability to make principal or interest payments on the Notes and (y) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings or agreements (as reasonably determined by the Issuer in good faith);
(M) any encumbrance or restriction of a Receivables Financing Subsidiary effected in connection with a Permitted Receivables Financing; provided, however, that such restrictions apply only to such Receivables Financing Subsidiary;
(N) any agreement or instrument governing any Indebtedness, Disqualified Stock, or Preferred Stock permitted to be Incurred or issued pursuant to Section 4.03 entered into after the Issue Date or the Escrow Release Date so long as such encumbrances and restrictions included therein are no more restrictive in any material respect taken as a whole with respect to any Restricted Subsidiary than (x) encumbrances or restrictions contained in this Indenture or the Credit Agreement as of the Escrow Release Date, or (y) encumbrances or restrictions that were in effect on the Escrow Release Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or the Escrow Release Date in the good faith judgment of the senior management of the Issuer at the time such encumbrances or restrictions are agreed to; and
(O) any encumbrances or restrictions of the type referred to in clauses (a) through (c) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (A) through (N) of this Section 4.05(i); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, no more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing,
(ii) with respect to clause (c) only:
(A) any encumbrance or restriction consisting of customary provisions in leases and other agreements 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) any encumbrance or restriction contained in any Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.03 and 4.13 if such restrictions or conditions apply only to the property or assets securing such Indebtedness;
(D) any encumbrance or restriction contained in any agreement relating to Purchase Money Indebtedness permitted by Section 4.03 if such restrictions or conditions apply only to the assets securing such Indebtedness; and
(E) any encumbrance or restriction consisting of customary provisions restricting assignment of, or the creation of any Lien over, any agreement entered into in the ordinary course of business.
(iii) For purposes of determining compliance with this Section 4.05, (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock other Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any a Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any such Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or a restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 loans 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 4.06advances.
Appears in 1 contract
Sources: Indenture (Western Digital Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 to the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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);
(yii) 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 Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed a restriction on the ability to constitute make loans or advances); or
(iii) transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such an encumbrance or restrictiontransfers shall not include any type of transfer described in Section 3.4(a)(i) and Section 3.4(a)(ii) above).
(b) Section 4.07(a3.4(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) 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 Notes, the Subsidiary Guarantees, and the Senior Credit Agreements (and related documentation) 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 (i) such Person Restricted Subsidiary was acquired by the Company or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into in contemplation of the Borrower or any Restricted Subsidiarytransaction) and outstanding on such date; provided thatdate provided, for that any such encumbrance or restriction shall not extend to any assets or property of the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any other Restricted Subsidiary when such Person becomes other than the Successor Companyassets and property so acquired and that, in the case of Indebtedness, was permitted to be Incurred pursuant to this Indenture;
(5iii) any encumbrance or restriction with respect to a Restricted Subsidiary 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, to an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(33.4(b)(i) or Section 4.07(b)(43.4(b)(ii) or this Section 4.07(b)(5) (an “Initial Agreement”3.4(b)(iii) or contained in any amendment, supplement restatement, modification, renewal, supplement, refunding, replacement or other modification to refinancing of an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(33.4(b)(i) or Section 4.07(b)(43.4(b)(ii) or this Section 4.07(b)(53.4(b)(iii); 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 Lenders more restrictive, taken as a whole whole, to the Company than the encumbrances and restrictions contained in such agreements referred to in Section 3.4(b)(i) or Section 3.4(b)(ii) 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 Borrower)whichever is applicable;
(6iv) in the case of Section 3.4(a)(iii), any encumbrance or restriction:
(aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(bB) contained in mortgages, pledges or other security agreements permitted under this Agreement or Indenture securing Indebtedness of the Borrower 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
(cC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary; or
(d) pursuant to the terms of any license, authorization, concession or permit;
(7a) 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 AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in Section 3.4(a)(iii) 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 ventureacquired;
(8) vi) 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 such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(9viii) any customary provisions in leases, licenses, joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements and instruments entered into in the ordinary course of business;
(10ix) restrictions on cash or other deposits or net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(x) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license regulation or order, or required by any regulatory authority or stock exchange;
(11xi) 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 agreements entered into Subsidiary Guarantors in accordance with Section 3.2 that are not more restrictive, taken as a whole, than those applicable to the ordinary course of business;Company in either this Indenture or the Senior Credit Agreements on the Issue Date (which results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level); and
(12xii) any encumbrance encumbrances or restriction pursuant to Currency Agreements, Interest Rate Agreements restrictions contained in indentures or Commodity Hedging Agreements;
(13) any encumbrance other debt instruments or restriction arising pursuant to an agreement debt arrangements Incurred or instrument relating to any Indebtedness permitted to be Incurred Preferred Stock issued by Restricted Subsidiaries that are not Subsidiary Guarantors subsequent to the Effective 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 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 Borrower3.2(b)(v) and whereSection 3.2(b)(xiii) by Restricted Subsidiaries, in the case provided that after giving effect to such Incurrence of clause (ii)Indebtedness, the Borrower determines Company would be permitted to incur at the time least $1.00 of issuance of such additional Indebtedness that such encumbrances or restrictions (x) will not adversely affect, in any material respect, the Borrower’s ability pursuant 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 4.063.2(a).
Appears in 1 contract
Sources: Indenture (Deluxe Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Issuers shall not, and will shall not permit any of its their Restricted 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 to the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the Borrower an Issuer or any another Restricted Subsidiary;
(2ii) make any loans or advances to the Borrower an Issuer or any another Restricted Subsidiary; Subsidiary or
(3iii) sell, lease or transfer any of its property or assets to the Borrower an Issuer or any another 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, an Issuer and outstanding on such date (ii) such agreement or instrument is assumed by the 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 inin anticipation of, 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 an Issuer or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4an Issuer), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5c) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement evidencing Indebtedness Incurred without violation of this Indenture or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred issued pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clauses (a) or Section 4.07(b)(4(b) or this Section 4.07(b)(5clause (c) or contained in any amendment to an agreement referred to in clauses (a) or (b) or this clause (c); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any of such agreement, refinancing agreement or instrument amendment, taken as a whole, are no less favorable to the holders of the Securities in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendmentrespect, supplement or other modification relates (as determined in good faith by the Borrower)Board of Directors of the Issuers, than encumbrances and restrictions with respect to such Restricted Subsidiary contained in agreements in effect at, or entered into on, the Issue Date;
(6d) in the case of clause (iii) of this Section 4.08, any encumbrance or restriction:
restriction (aA) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contractproperty or asset, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or the assignment Lien on, any property or transfer assets of an Issuer or 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 not otherwise prohibited by this Agreement Indenture, (C) that is included in a licensing agreement to the extent such encumbrances restrictions limit the transfer of the property subject to such licensing agreement or (D) arising or agreed to in the ordinary course of business and that does not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any of its Restricted Subsidiaries in any manner material to an Issuer or any such Restricted Subsidiary;
(e) in the case of clause (iii) of this Section 4.08, restrictions contained in security agreements, mortgages or similar documents securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements;
(cf) pursuant to customary provisions restricting dispositions in the case of real property interests set forth in clause (iii) of this Section 4.08, any reciprocal easement agreements instrument governing or evidencing Indebtedness of the Borrower a Person acquired by an Issuer or any Restricted Subsidiary; or
(d) pursuant Subsidiary of an Issuer at the time of such acquisition, which encumbrance or restriction is not applicable to any Person, or the terms properties or assets of any licensePerson, authorizationother than the Person so acquired; provided, concession however, that such Indebtedness is not incurred in connection with or permitin contemplation of such acquisition;
(7g) 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;; and
(9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10h) 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 4.06law.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer will not, and will not permit any of its Restricted Subsidiaries 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 to the Borrower Issuer or any a Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the Borrower or any Restricted Subsidiary;
Issuer, (2ii) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(3iii) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction pursuant to any a Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of such agreementsIssue Date; 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) 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 (i) such Person Restricted Subsidiary was acquired by the Issuer or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 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 acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower or any a Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower 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 Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (1) or (2) of this Section 4.07(b)(44.6 or contained in any amendment to an agreement referred to in clause (1) or (2) of this Section 4.07(b)(5)4.6; 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 Lenders taken as a whole Noteholders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (predecessor agreements as determined in good faith by the BorrowerBoard of Directors of the Issuer; (4) in the case of clause (iii);
(6) , any encumbrance or restriction:
(a) restriction 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;
; (b5) in the case of clause (iii), contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement to the extent such encumbrances encumbrance 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 1 contract
Sources: Indenture (Spectrasite Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer will not, and will not permit any of its Restricted Subsidiaries 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 Borrower Issuer or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restriction.
advances) or (bC) Section 4.07(a) will not prohibitsell, lease or transfer any of its property or assets to the Issuer or any of its Restricted Subsidiaries, except:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 clauses (a)(A), (a)(B) and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrower);a)(C):
(2A) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(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 and the related documentation, the 2026 Senior Notes Indenture, the 2026 Senior Notes and the related guarantees and the related documentation, the Third Lien Notes Indenture, the Third Lien Notes and the related guarantees, the Third Lien Notes Security Documents and the related documentation and (y) this Indenture, the Notes, the Guarantees and the First Lien 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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Issuer (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryIssuer) 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 Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any 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 refinancing are entered into in the Borrower ordinary course of business or any Restricted Subsidiary when not materially more restrictive, taken as a whole, than those contained in the ABL Credit Facility, this Indenture, the 2026 Senior Notes Indenture, the Third Lien Notes Indenture, existing Indebtedness or such Person becomes other agreements as in effect on the Successor Companydate of the acquisition;
(5C) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, to an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (A) or (B) of clause (1) of this Section 4.07(b)(4) 4.11 or this Section 4.07(b)(5) clause (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 Section 4.07(b)(1), Section 4.07(b)(3clause (A) or (B) of clause (1) of this Section 4.07(b)(4) 4.11 or this Section 4.07(b)(5clause (C); 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 not materially more restrictive on the whole to the Holders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements on the Lenders taken as a whole than 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 Borrower)Issuer;
(6H) any encumbrance or restriction: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;
(aI) 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 restricts are the subject of the Permitted Receivables Financing, and restrictions or conditions imposed on any Receivables Subsidiary in a customary manner connection with any Permitted Receivables Financing;
(K) provisions limiting the subletting, assignment 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 asset Capital Stock that is are the subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contractsuch agreements;
(bL) 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;
(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 (x) the provisions relating to such encumbrance or restriction contained in mortgagessuch Indebtedness are no less favorable to the Issuer, pledges taken as a whole, as determined by the Issuer in good faith, than the provisions contained in the ABL Credit Facility, the 2026 Senior Notes Indenture or the Third Lien Notes Indenture, in each case, as in effect on the Issue Date or (y) 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 or any Subsidiary Guarantor’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 permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement to the extent such encumbrances encumbrance or restrictions 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 or assets subject to such mortgages, pledges or other security agreementsleased thereunder;
(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;
(7B) any encumbrance or restriction pursuant existing by virtue of any transfer of, agreement to Purchase Money Obligations and Capitalized Lease Obligations permitted under 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 AgreementIndenture;
(C) any encumbrance or restriction existing under, by reason of or with respect to (i) purchase money obligations for property acquired in each case, 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 pursuant arising or agreed to a joint venture agreement in the ordinary course of business, not relating to any Indebtedness, and that imposes restrictions on do not, individually or in the transfer aggregate, detract from the value of the property or assets of the joint ventureIssuer or any Restricted Subsidiary thereof in any manner material to the Issuer or any Restricted Subsidiary thereof;
(8) any encumbrance E) non-assignment provisions 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 subletting restrictions in leasescontracts, licenses, joint venture agreements leases and other similar agreements and instruments licenses entered into in the ordinary course of business;
(10F) encumbrances on property that exist at the time the property was acquired by the Issuer or restrictions arising or existing by reason a Restricted Subsidiary, provided such encumbrances were not put in place in anticipation of applicable law or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchangesuch acquisition;
(11G) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under customary provisions in asset sale 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 stock sale agreements arising in connection with the entering into of such transactions; and
(3) any Purchase Money Noteencumbrances 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 Indebtedness or a Qualified Receivables Financing thatthan with respect to the ABL Credit Facility) are, in the good faith determination of an Officer or the Board of Directors judgment of the BorrowerIssuer, are necessary no more restrictive on the whole with respect to such dividend and other payment restrictions than those contained in the dividend or advisable other payment restrictions prior to effect such Qualified Receivables Financing; or
(15) any encumbrance amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or restriction existing by reason of any Lien permitted under Section 4.06refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower Company or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Company, (2b) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(3c) sell, lease or transfer any of its property or assets to the Borrower or any Restricted SubsidiaryCompany, 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibitexcept:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other an agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Issue Date (as determined in good faith by including this Indenture, the BorrowerCredit Facilities and the Intercreditor Agreement);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) 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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Company (ii) such agreement or instrument is assumed by the 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 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 Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryCompany) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(53) any encumbrance or restriction pursuant to an agreement any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or instrument effecting a refunding, replacement or refinancing Refinancings of the Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or any of the foregoing clauses and restrictions contained in any amendmentIndebtedness incurred after the date hereof in accordance with the terms of this Indenture; provided that such amendments, supplement modifications, restatements, renewals, increases, supplements, refundings, replacements or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5); provided, however, that the encumbrances and restrictions Refinancings are not materially more restrictive with respect to such Restricted Subsidiary dividend and other payment restrictions than those contained in the applicable instrument governing such Indebtedness as in effect on the date of this Indenture; provided, further, that, with respect to any agreement governing such agreement other Indebtedness, the provisions relating to such encumbrance or instrument restriction are no less favorable to the Company in any material respect to as determined by the Lenders taken as a whole Company in its reasonable and good faith judgment than the encumbrances and restrictions provisions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (Credit Facilities as determined in good faith by effect on the Borrower)Issue Date;
(64) 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 contracts entered into in the ordinary course of business;
(125) any such encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements consisting of customary non-assignment provisions in contracts or Commodity Hedging Agreementsin leases governing leasehold interest and in intellectual property contracts and licenses;
(136) any encumbrance or restriction arising with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or instrument relating to disposition of assets (including Capital Stock) of such Restricted Subsidiary permitted by this Indenture pending the closing of such sale or disposition;
(7) any Indebtedness permitted to be Incurred subsequent to the Effective Date pursuant to Section 4.04 if the encumbrances and restriction arising under applicable law, regulation or order;
(8) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements or mortgages;
(9) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such agreement or instrument Lien; and
(10) restrictions that are not materially more restrictive, taken as a whole are not materially less favorable to the Lenders whole, than (i) the encumbrances and restrictions contained in this Agreement or any Loan Document on the Effective Date, or (ii) is customary provisions in comparable financings (and, as determined by management of the Company in its reasonable and good faith by the Borrower) and wherejudgment, 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, materially impair the BorrowerCompany’s ability to make principal or interest payments as required 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 4.06Notes.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries 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 to the Borrower Issuer or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
(2) make any loans or advances to the Borrower or any Restricted SubsidiaryIssuer; or
(3) sell, lease or transfer any of its property or assets to the 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 Common Stock shall not be deemed a restriction of the ability to make distributions of Capital Stock;
(yb) make any loans or advances to the Issuer; provided that the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed a restriction of the ability to constitute such an encumbrance make loans or restriction.advances; or
(c) transfer any of its Property or assets to the Issuer, except with respect to clauses (a), (b) Section 4.07(aand (c) will not prohibitabove:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other an agreement or instrument, in each case, in effect at or entered into on the Effective Issue Date including, for the avoidance of doubt, the First Lien RBL Credit Agreement, this Indenture, the Notes and any amendmentsthe Guarantees thereof, restatementsthe 1.75 Lien Credit Agreement, 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 Second Lien Credit Agreement and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrower)Existing Unsecured Notes;
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) 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 Indebtedness Incurred by such Restricted Subsidiary, or Indebtedness of a Personotherwise binding on such Restricted Subsidiary, entered into on or before prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed was so designated by the Borrower 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 or credit support utilized to consummate, and other than any encumbrance or restriction entered into in contemplation of, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryIssuer) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower 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 Refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (1) or Section 4.07(b)(4(2) or this Section 4.07(b)(5)above; 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 Lenders taken as a whole more restrictive than the encumbrances and restrictions with respect to such Restricted Subsidiary 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 Borrower);
(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 predecessor agreements;
(c4) 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 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 Property or assets that are subject to such restrictionrestrictions) pending the closing of such sale or disposition;
(5) customary encumbrances and restrictions contained in agreements of the type described in the definition of the term “Permitted Business Investments”;
(6) any encumbrance or restriction pursuant to an agreement relating to any Capital Lease Obligations or purchase money Indebtedness, in each case not Incurred in violation of this Indenture; provided, that with respect to purchase money Indebtedness or Capital Lease Obligations, such restrictions relate only to the Property financed with such Indebtedness;
(7) any encumbrance or restriction pursuant to provisions in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any Capital Stock of a Person other than on a pro rata basis;
(8) any encumbrance or restriction existing pursuant to applicable law, rule, regulation, order, approval, license, permit or similar restriction;
(9) customary provisions in leasesany encumbrance or restriction pursuant to supermajority voting requirements under corporate charters, licensesbylaws, joint venture stockholders agreements and similar documents and agreements; and
(10) any encumbrance or restriction pursuant to an instrument or agreement governing Indebtedness permitted by the terms of this Indenture to be Incurred by a Restricted Subsidiary to fund, in whole or in part, the acquisition of any Property or assets; provided such Indebtedness is repaid or otherwise refinanced in full with Refinancing Indebtedness on or prior to the date twelve (12) months after the date such Indebtedness was initially Incurred; and and except, with respect to clause (c) only:
(1) any encumbrance or restriction consisting of customary non-assignment provisions (including provisions forbidding subletting) in leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements to the extent such provisions restrict the transfer of the lease or the Property leased thereunder;
(2) any encumbrance or restriction contained in Capital Lease Obligations, security agreements, mortgages, purchase money agreements or similar instruments securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the Property (including Capital Stock) subject to such Capital Lease Obligations, security agreements, mortgages, purchase money agreements or similar instruments;
(3) Permitted Liens or Liens securing Indebtedness otherwise permitted to be Incurred pursuant to Section 4.12 that limit the right of the Issuer or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
(4) customary restrictions contained in asset sale agreements limiting the transfer of such assets pending the closing of such sale;
(5) customary restrictions on the subletting, assignment or transfer of any Property or asset that is subject to a lease, license, sub-license or similar contract, or the assignment or transfer of any such lease, license, sub-license or other similar agreements contract;
(6) encumbrances and instruments restrictions contained in contracts entered into in the ordinary course of business;, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Issuer and the Restricted Subsidiaries to realize the value of, Property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or any Restricted Subsidiary; and
(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;
(117) any encumbrance or restriction on cash pursuant to provisions with respect to the disposition or distribution of assets or Property in operating agreements, sale-leaseback agreements, joint venture agreements, development agreements, area of mutual interest agreements and other deposits or net worth imposed by customers under agreements that are customary in the Oil and Gas Business and 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 1 contract
Sources: Indenture (Exco Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company and each Subsidiary Guarantor shall not, and will shall not permit any of its Restricted Subsidiaries 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 to the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Company, (2ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(3iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted SubsidiaryCompany, provided that except (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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4a) any encumbrance or restriction pursuant to an agreement in effect at or instrument entered into on the Issue Date (including, the Revolving Credit Facility but after giving effect to the use of proceeds from the issuance of the Securities to retire Indebtedness on such date); (b) any encumbrance or restriction imposed by the Securities or any pari passu Indebtedness incurred in accordance with this Indenture and whose restrictions are no more restrictive than those in this Indenture; (c) 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 prior to the date on which (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 consummateconsummate or otherwise Incurred in connection with, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5d) any encumbrance or restriction imposed by any Senior Credit Facility that is no more restrictive than those contained in the Revolving Credit Facility; (e) any encumbrance or restriction with respect to any agreement effecting a refinancing, refunding, replacement, renewal, repayment or extension (including pursuant to an agreement defeasance or instrument effecting a refunding, replacement or refinancing discharger mechanisms) of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1clause (a), Section 4.07(b)(3(b), (c) or (d) of this Section 4.07(b)(43.6 or this clause (e) or contained in any amendment to an agreement referred to in clause (a), (b), (c) or (d) of this Section 4.07(b)(53.6 or this clause (e); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument amendment are no less favorable in any material respect to the Lenders taken as a whole not materially more restrictive than the encumbrances and or restrictions contained in such agreements; (f) in the Initial Agreement or Initial Agreements to which such refinancing or amendmentcase of clause (iii) above, supplement or other modification relates (as determined in good faith by the Borrower);
(6) any encumbrance or restriction:
(a) restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
; (b) contained in mortgages, pledges or other security agreements permitted under this Agreement 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;
(7g) 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) assets imposed pursuant to an agreement entered into for the the, direct or indirect 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 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;
(10h) 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;
law; (11i) restrictions on transfer contained in Purchase Money Indebtedness incurred pursuant to Section 3.3 of this Indenture; provided such restrictions relate only to the transfer of the property acquired with the proceeds of such Purchase Money Indebtedness; (j) 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)Indenture, 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 Securities 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 4.06Subsidiary Guarantees.
Appears in 1 contract
Sources: Indenture (Big City Radio Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries 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 the Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
Subsidiary (2) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower 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 Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restriction.advances); or
(b3) Section 4.07(atransfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The provisions of the preceding paragraph will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction pursuant to an agreement in effect at or instrument entered into on the date of this Indenture, including this Indenture, the Securities, the Exchange Securities, the Subsidiary Guarantees 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 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 (i) such Person Restricted Subsidiary was acquired by the Company or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into in contemplation of the Borrower or any Restricted Subsidiarytransaction) and outstanding on such date; provided thatprovided, for that any such encumbrance or restriction shall not extend to any assets or property of the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any other Restricted Subsidiary when such Person becomes other than the Successor Companyassets and property so acquired;
(5iii) any encumbrance or restriction with respect to a Restricted Subsidiary 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, to an agreement or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (i) or Section 4.07(b)(4(ii) of this paragraph or this Section 4.07(b)(5) clause (an “Initial Agreement”iii) or contained in any amendment, supplement restatement, modification, renewal, supplement, refunding, replacement or other modification to refinancing of an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3clause (i) or Section 4.07(b)(4(ii) of this paragraph or this Section 4.07(b)(5clause (iii); 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 Lenders respect, taken as a whole 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 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 Borrower)whichever is applicable;
(6iv) in the case of clause (3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Agreement or Indenture securing Indebtedness of the Borrower 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 Borrower Company or any Restricted Subsidiary; or
(d) pursuant to the terms of any license, authorization, concession or permit;
(7v) any encumbrance or restriction pursuant to Purchase Money purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations and Capitalized Synthetic Lease Obligations permitted under this AgreementIndenture, 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 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 ventureacquired;
(8) vi) any encumbrance Purchase Money Note or restriction other Indebtedness or contractual requirements Incurred 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 Qualified Receivables Transaction relating exclusively to a Person Receivables Entity that, in the good faith determination of all or substantially all the Capital Stock or assets Board of Directors, are necessary to effect such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionQualified Receivables Transaction;
(9vii) any customary provisions in leases, licenses, joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements and instruments entered into in the ordinary course of business;
(10viii) restrictions on cash or other deposits or net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license regulation or order, or required by any regulatory authority or stock exchange;
(11x) any encumbrance encumbrances or restriction on cash restrictions contained in indentures or other deposits debt agreements Incurred or net worth imposed Preferred Stock issued by customers under agreements Restricted Subsidiaries subsequent to the Issue Date and permitted pursuant to 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);
(xi) customary non-assignment provisions in contracts, leases and licenses 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.and
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, create directly or otherwise cause indirectly, enter into, incur or permit to exist any agreement or become effective other arrangement that prohibits, restricts or imposes any consensual encumbrance condition upon (a) the ability of the Borrower or consensual restriction on any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets or (b) the ability of any Restricted Subsidiary to:
(1) to pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Borrower or any a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
(2) Borrower, to make any loans or advances to the Borrower or any a Restricted Subsidiary; or
(3) sell, lease Subsidiary or to Guarantee Indebtedness of or to transfer any of its property or assets to the 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 Borrower or any other Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of such agreementsthat owns Capital Stock therein; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are foregoing shall not materially more restrictive, taken as a whole, with respect apply to such dividend and other payment restrictions than those contained in those agreements on the Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, restrictions and conditions imposed by law or by this Agreement; (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) 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 date hereof identified on Schedule 6.07 (but shall apply to any extension or before renewal of, or any amendment or modification expanding the scope of, any such restriction or condition); (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement applicable to such Restricted Subsidiary on or prior to the date on which (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such other than an agreement or instrument is assumed by the Borrower or any Restricted Subsidiary entered into 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 inwith, or to provide all or any portion of the funds utilized to consummatein anticipation of, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryBorrower) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or (iv) any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing consisting of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to customary non-assignment provisions in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 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 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 Borrower);
(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 leases governing leasehold interests to the extent such encumbrances provisions restrict the transfer of the lease or the property leased thereunder; (v) in the case of a Restricted Subsidiary transferring any of its property or assets to the Borrower, restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property or assets subject to such security agreements or mortgages, pledges or other security agreements;
; and (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;
(7vi) 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;
; provided further that clause (9a) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in of the ordinary course of business;
(10) encumbrances foregoing shall not apply to restrictions or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license or order, or required conditions imposed 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 secured Indebtedness permitted to be Incurred subsequent by this Agreement if such restrictions or conditions apply only to the Effective Date pursuant to Section 4.04 if the encumbrances and restrictions contained in any such agreement property 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 assets securing 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.
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Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Hanover will not, and will not permit any of its Restricted Subsidiaries 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 Borrower or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Hanover or any Restricted Subsidiary;
; (2) make any loans or advances to the Borrower Hanover or any Restricted Subsidiary; or
or (3) sell, lease or transfer any of its property or assets to the Borrower Hanover 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 Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted 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.
(b) Section 4.07(a) . The preceding provisions will not prohibit:
(1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Effective 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 Effective Date (as determined in good faith by the Borrower);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of prohibit (i) any Loan Documents, (ii) the New Senior Guaranteed Notes Indenture and the New Senior Guaranteed Notes, (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 related security documents, escrow arrangements or other documents related to the foregoing;
(4) any encumbrance or restriction pursuant to an agreement in effect at or instrument entered into on the date of this Agreement, including, without limitation, this Agreement, the 2001B Participation Agreement 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 (i) such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, Hanover (ii) such agreement or instrument is assumed by the 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by Hanover or in contemplation of the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiarytransaction) and outstanding on such date; provided that, for the purposes of this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(5iii) any encumbrance or restriction with respect to a Restricted Subsidiary 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 or instrument referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(39.5(i) or Section 4.07(b)(4(ii) or this clause (iii) or contained in any amendment to an agreement referred to in Section 4.07(b)(59.5(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 instrument amendment are no less favorable in any material respect to the Lenders taken as a whole Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in Section 9.5(i) or (ii) on the Initial Agreement Issue Date or Initial Agreements to which the date such refinancing or amendmentRestricted Subsidiary became a Restricted Subsidiary, supplement or other modification relates whichever is applicable; (as determined iv) in good faith by the Borrower);
case of clause (63) of this Section 9.5, any encumbrance or restriction:
restriction (a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
; (b) contained in mortgages, pledges or other security agreements permitted under this Agreement or securing Indebtedness of the Borrower Hanover 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 Borrower Hanover or any Restricted Subsidiary; or
(dv) pursuant to purchase money obligations for property acquired in the terms ordinary course 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, business that impose encumbrances or restrictions of the nature described in clause (3) of this Section 9.5 on the property so acquired acquired; (vi) any Purchase Money Note or any encumbrance other Indebtedness or restriction pursuant contractual requirements incurred with respect to a joint venture agreement that imposes restrictions on Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the transfer good faith determination of the assets Board of the joint venture;
Directors, are necessary to effect such Qualified Receivables Transaction; (8) vii) 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;
; and (9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license regulation 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.
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