Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to: (a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions); (b) make any loans or advances to the Borrower or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or (c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibit: (i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date; (ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the Restricted Subsidiary was acquired by the Borrower (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable; (iv) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction: (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract; (B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or (C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary; (v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired; (vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; (vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;” (viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and (ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
Appears in 3 contracts
Sources: Second Lien Credit Agreement (Quicksilver Resources Inc), Second Lien Credit Agreement (Quicksilver Resources Inc), Second Lien Credit Agreement (Quicksilver Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will BZ Holdings shall not, and will shall not permit any of its Restricted Subsidiary 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 (a) pay dividends or make any other distributions on its Capital Stock to BZ Holdings or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower BZ Holdings or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Subsidiary, (b) make any loans or advances to the Borrower BZ Holdings or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower BZ Holdings or any Restricted Subsidiary. The preceding provisions will not prohibit, except:
(i1) 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 encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Issue Date (including the Credit Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date);
(ii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred or Capital Stock or Indebtedness Incurred issued by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower BZ Holdings or any Restricted Subsidiary (other than Indebtedness Incurred or Capital 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower BZ Holdings or in contemplation of the transaction or transactionsany Restricted Subsidiary) and outstanding on such date; provided that ;
(4) any such encumbrance or restriction shall not extend to any assets arising by reason of applicable law, rule, regulation or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquiredorder;
(iii5) 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 pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 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;
(vii7) any encumbrance or restriction consisting of customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth 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 by the Borrower or any Restricted Subsidiary 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
(ix13) any encumbrances or restrictions arising of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or existing by reason refinancings of applicable law the contracts, instruments or any applicable ruleobligations referred to in clauses (1) through (12) above or this clause (13); provided that such amendments, regulation modifications, restatements, renewals, increases, supplements, refundings, replacements or orderrefinancings are, in the good faith judgment of an Officer, not materially more restrictive, taken as a whole, with respect to such dividend and other restrictions than those contained in the dividend or other restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
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 Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Issuer; (b) make any loans or advances to the Borrower Issuer; or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitIssuer, except:
(i) with respect to clauses (a), (b) and (c) of the first sentence of this Section 4.04(A),
(a) any encumbrance or restriction pursuant to an agreement of the Issuer or any of its Subsidiaries in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateIssue 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 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 Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Issuer (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsIssuer) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iiid) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (ia), (b) or (iic) of this paragraph Section 4.04(A)(i) or this clause (iiid) or contained in any amendment to an agreement referred to in clause (ia), (b) or (iic) of this paragraph Section 4.04(A)(i) or this clause (iiid); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no not materially less favorable in any material respect favorable, taken as a whole, to the Lenders Noteholders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred predecessor agreements;
(e) any encumbrance or 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 clauses 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 this paragraph on the date relevant partnership agreement, limited liability company operating agreement or other governing document of this Agreement the entity that is the borrower (or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicabledirect parent of the borrower) under any Non-Recourse Indebtedness or of any Co-investment Vehicle;
(ivg) any encumbrance or restriction contained in the case 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 paragraph sentence of this Section 9.05, 4.04(A) only,
(a) any such encumbrance or restriction:
(A) that restricts restriction consisting of customary non-assignment provisions in a customary manner the subletting, assignment leases governing leasehold interests or transfer licenses of any intellectual property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances provisions restrict the transfer of the lease or the property leased or licensed thereunder;
(b) restrictions contained in security agreements, mortgages or other agreements securing Indebtedness of a Restricted Subsidiary or any agreement governing Non-Recourse Indebtedness to the extent such restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower , mortgages or any Restricted SubsidiaryNon-Recourse Indebtedness;
(vc) (A) purchase money obligations for property acquired in restrictions on the ordinary course transfer of business and (B) Capital Lease Obligations assets subject to any Lien permitted under this Agreement, in each case, that impose encumbrances or restrictions the Indenture imposed by the holder of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredsuch Lien;
(vid) any 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 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
(viie) customary encumbrances arising or restrictions imposed pursuant agreed to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances , not relating to any Indebtedness, and that do not, individually or restrictions arising in the aggregate, detract from the value of the property or existing by reason assets of applicable law the Issuer or any applicable ruleRestricted Subsidiary in a manner material to the Issuer and its Restricted Subsidiaries, regulation or ordertaken as a whole.
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 Issuer will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Subsidiary;
(b2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Subsidiary; or
(c3) transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary. .
(b) The preceding provisions of Section 4.8(a) will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateIndenture;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the such Restricted Subsidiary was acquired by the Borrower Issuer (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Issuer or in contemplation of the transaction or transactionstransaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement relating to any Indebtedness referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided 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 refinancing referred to above, are no less favorable in any material respect to the Lenders more restrictive than the encumbrances and restrictions contained in such the agreements relating to the Indebtedness referred to in clauses (i) or (ii) of this paragraph in existence on the date of this Agreement Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c3) of the first paragraph of this Section 9.054.8(a) above, 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 Indenture securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(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;
(v) (Aa) purchase money obligations for property acquired in the ordinary course of business and (Bb) Capital Capitalized Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (cSection 4.8(a)(3) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ixvii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, including applicable corporate law restrictions on the payment of dividends.
Appears in 3 contracts
Sources: Indenture (Central European Media Enterprises LTD), Indenture (Central European Media Enterprises LTD), Indenture (Central European Media Enterprises LTD)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) 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 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);
(by) make any loans or advances to the Borrower or any Restricted Subsidiary (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 being Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, shall not be deemed not to constitute such an encumbrance or restriction); or.
(cb) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions 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 entered into on the date instrument of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii) any encumbrance a Person or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by of a Restricted Subsidiary Person, entered into on or before the date on which the Restricted Subsidiary (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 Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of was merged, consolidated or otherwise combined with or into the transaction Borrower or transactionsany Restricted Subsidiary) and outstanding on such date; provided that 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 encumbrance Subsidiary shall be deemed acquired or restriction shall not extend to any assets or property of assumed by the Borrower or any other Restricted Subsidiary other than when such Person becomes the assets and property so acquiredSuccessor Company;
(iii5) 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 clause (iSection 4.07(b)(1), Section 4.07(b)(3) or (iiSection 4.07(b)(4) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iiiSection 4.07(b)(5); provided, including successive refundingshowever, replacements or refinancings; provided 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 such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableBorrower);
(iv6) in the case of clause (c) of the first paragraph of this Section 9.05, 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 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; or;
(Cc) 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;
(v7) (A) purchase money obligations for property acquired in the ordinary course of business any encumbrance or restriction pursuant to Purchase Money Obligations and (B) Capital Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredacquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) 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;
(vii9) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases leases, licenses, joint venture agreements and other similar agreements and instruments entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and;
(ix10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, governmental license or order, or required by any regulatory authority 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. The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Company;
(b) make any loans or advances to the Borrower or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Company; or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitCompany, except:
(i) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateClosing Date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company or any Restricted Subsidiary (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 Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph Section 3.08 or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph Section 3.08 or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such Refinancing agreement or amendment, taken as a whole, are no not materially less favorable in any material respect to the Lenders Holders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(iv) in the case of clause (c) of the first paragraph of this Section 9.05), 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 of any such lease, license or other contract;
; (B2) contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such security agreements or mortgages; or (3) arising or agreed to in the ordinary course of business, pledges not relating to any Indebtedness, and that does not, individually or other security agreements; or
(C) pursuant to customary provisions restricting dispositions in the aggregate, detract from the value of real property interests set forth in any reciprocal easement agreements or assets of the Borrower Company or any Restricted SubsidiarySubsidiary thereof in any manner material to the Company or any Restricted Subsidiary thereof;
(v) (A) purchase money obligations for property acquired 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 and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredbusiness;
(vi) any restriction with respect to a Restricted Subsidiary (Subsidiary, any encumbrance or any of its property or assets) restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances provisions limiting the disposition or restrictions imposed pursuant to any agreement referred to distribution of assets or property in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction existing under, by reason of or with respect to Indebtedness Incurred by any Subsidiary Guarantor permitted to be Incurred under Section 3.06, provided that the Board of Directors determines (as evidenced by a resolution of the Board of Directors) 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; andor
(ix) encumbrances or restrictions arising or existing under, by reason of applicable law or any applicable rule, regulation or orderwith respect to Indebtedness Incurred by Foreign Subsidiaries permitted to be Incurred under Section 3.06.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Alliant Techsystems Inc), Supplemental Indenture (Alliant Techsystems Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company may not, and will may not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(b2) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c3) transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(ia) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this AgreementIssue Date, including, without limitation, the First Lien Credit AgreementsIndenture, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes Secured Credit Agreement in effect on such date;
(iib) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of the transaction or transactions) and outstanding on such date; provided date provided, that any such encumbrance or restriction shall not extend to any assets or property of the Borrower Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iiic) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (ia) or (iib) of this paragraph or this clause (iiic) or contained in any amendment to an agreement referred to in clause (ia) or (iib) of this paragraph or this clause (iiic), including successive refundings, replacements or refinancings; provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (ia) or (iib) of this paragraph on the date of this Agreement Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(ivd) in the case of clause (c3) of the first paragraph of this Section 9.053.06, 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 the Indenture securing Indebtedness of the Borrower Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(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;
(ve) (Ai) purchase money obligations for property acquired in the ordinary course of business and (Bii) Capital Lease Obligations permitted under this Agreementthe Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (c3) of the first paragraph of this Section 9.05 3.06 on the property so acquired;
(vif) 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 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;
(viig) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viiih) net worth provisions in leases and other agreements entered into by the Borrower Company or any Restricted Subsidiary in the ordinary course of business; and
(ixi) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
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. The Borrower will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Borrower;
(b2) make any loans or advances to the Borrower or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Borrower; or
(c3) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitBorrower, except:
(iA) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateRestatement Date;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower (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 Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Borrower or in contemplation of the transaction or transactionsBorrower) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iSection 6.03(3)(A) or (iiSection 6.03(3)(B) of this paragraph or this clause (iiiSection 6.03(3)(C) or contained in any amendment to an agreement referred to in clause (iSection 6.03(3)(A) or (iiSection 6.03(3)(B) of this paragraph or this clause (iiiSection 6.03(3)(C); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such Refinancing agreement or amendment are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(ivD) in the case of clause (c) of the first paragraph of this Section 9.056.03(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 such lease, license or other contract;; or
(Bii) contained in mortgages, pledges or and other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vE) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) any restriction with respect to a Restricted Subsidiary (or Subsidiary, any of its property or assets) restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition 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;
(viiF) customary encumbrances any encumbrance or restriction existing under or by reason of Indebtedness or other contractual requirements of a Receivables Entity in connection with a Qualified Receivables Transaction; provided, however, that such restrictions imposed pursuant apply only to any agreement referred to such Receivables Entity;
(G) purchase money obligations for property acquired in the definition ordinary course of “Permitted Business Investmentbusiness and Capitalized Lease Obligations that impose restrictions on the property purchased or leased of the nature described in Section 6.03(3);”
(viiiH) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements;
(I) restrictions on cash or other deposits or net worth provisions in leases and other agreements entered into imposed by the Borrower or any Restricted Subsidiary customers, suppliers or, in the ordinary course of business, other third parties; and
(ixJ) encumbrances with respect to any Foreign Restricted Subsidiary, any encumbrance or restrictions arising or existing by reason restriction contained in the terms of applicable law any Indebtedness, or any applicable ruleagreement pursuant to which such Indebtedness was issued, regulation if:
(i) the encumbrance or orderrestriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement; or
(ii) at the time such Indebtedness is Incurred, such encumbrance or restriction is not expected to materially affect the Borrower's ability to make principal or interest payments on the Obligations, as determined in good faith by a Financial Officer of the Borrower, whose determination shall be conclusive.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/), Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary toSubsidiary:
(ai) to pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);Subsidiary,
(bii) to make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); orSubsidiary,
(ciii) to transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary. The preceding provisions will not prohibit, or
(iv) to make payments in respect of any Indebtedness owed to the Company or any Restricted Subsidiary, except:
(i1) any such encumbrance or restriction pursuant to to: (x) an agreement in effect at or entered into on the date of this AgreementIssue Date, including, without limitation, (y) the First Lien Credit Agreements, the indenture Agreement and any guarantees thereunder or (z) agreements governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateLeasing Indebtedness only with respect to a Leasing Subsidiary;
(ii2) any such encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that ;
(3) any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i1)(x) or (ii2) of this paragraph or this clause (iii) Section 4.12 or contained in any amendment to an agreement referred to in clause (i1)(x) or (ii2) of this paragraph or this clause (iii)Section 4.12; provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable in any material respect to the Lenders Holders of the Notes than the any such encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableagreements;
(iv4) any such 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;
(5) in the case of clause (ciii) of the first paragraph of this Section 9.05above, 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) encumbrances and restrictions contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi6) 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 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;
(vii7) customary encumbrances any such encumbrance or restrictions imposed pursuant restriction with respect to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary that is a Foreign Subsidiary pursuant to an agreement relating to Indebtedness permitted to be Incurred pursuant to Section 4.9(10);
(8) any encumbrance customarily contained in the ordinary course of businessagreements governing Joint Ventures permitted under this Indenture and which were agreed to in good faith; and
(ix9) encumbrances or restrictions arising or existing imposed by reason of applicable law or any applicable rule, regulation or orderlaw.
Appears in 2 contracts
Sources: Indenture (Trinity Marine Products, Inc.), Indenture (Trinity Industries Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Company, (b) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitCompany, except:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of Issue Date (including this Agreement, including, without limitationIndenture, the First Lien agreements governing the Credit Agreements, Facilities and the indenture governing the Second Lien Existing AMI Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateGuarantees thereof);
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refundingany amendments, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii)modifications, including successive restatements, renewals, increases, supplements, refundings, replacements or refinancingsRefinancings of the Indebtedness referred to in any of the foregoing clauses and restrictions contained in Indebtedness incurred after the date hereof in accordance with the terms of this Indenture; provided that the encumbrances and restrictions such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or Refinancings are not materially more restrictive with respect to such Restricted Subsidiary dividend and other payment restrictions than those contained in any the applicable instrument governing such agreement are no less favorable Indebtedness as in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph effect on the date of this Indenture; provided that, with respect to any agreement governing such other Indebtedness, the provisions relating to such encumbrance or restriction are no less favorable to the Company in any material respect as determined by the Company in its reasonable and good faith judgment than the provisions contained in the Credit Agreement or the date such Restricted Subsidiary became a Restricted Subsidiaryas in effect on April 23, whichever is applicable2002;
(iv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the case ordinary course of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiarybusiness;
(v) (A) purchase money obligations for any such encumbrance or restriction consisting of customary non-assignment provisions in contracts or in leases governing leasehold interest and in intellectual property acquired in the ordinary course of business contracts and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredlicenses;
(vi) 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 of all or substantially all the assets (including Capital Stock or assets Stock) of such Restricted Subsidiary (or the property or assets that are subject to such restriction) permitted by this Indenture pending the closing of such sale or disposition;
(vii) customary encumbrances any restriction arising under applicable law, regulation or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investmentorder;”
(viii) net worth provisions restrictions contained in leases and other security agreements entered into 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;
(ix) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the Borrower or any Restricted Subsidiary in the ordinary course holder of businesssuch Lien; and
(ixx) encumbrances restrictions contained in agreements relating to Indebtedness incurred in connection with the Note Refinancing and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or Refinancings of such agreements; provided that such agreements, amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or Refinancings are not materially more restrictive with respect to such dividend and other payment restrictions arising or existing than those contained in this Indenture as determined by reason the Board of applicable law or any applicable rule, regulation or orderDirectors of the Company in its reasonable and good faith judgment and such determination is evidenced by a resolution of the Board of Directors.
Appears in 2 contracts
Sources: Purchase Agreement (Amh Holdings, LLC), Indenture (Associated Materials, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
of the Borrower (a) to pay dividends or make any other distributions on its Capital Stock owned by, or pay any Indebtedness or other obligations owed to to, the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Borrower, (b) to make any loans or advances to the Borrower or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitBorrower, except:
(i) any encumbrance or restriction pursuant to an the Existing Credit Agreement or any other agreement in effect at or entered into on the date of this AgreementAgreement and any extensions, includingrefinancings, without limitationrenewals or replacements of any such agreement; provided, however, that the First Lien Credit Agreementsencumbrances and restrictions in any such extension, refinancing, renewal or replacement are no less favorable in any material respect to the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateBanks than those encumbrances or restrictions being extended, refinanced, renewed or replaced;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary of the Borrower pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower (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 Restricted Subsidiary became a Restricted Subsidiary of, or was acquired by by, the Borrower or in contemplation of the transaction or transactionsBorrower) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) above or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii)above; provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable in any material respect to the Lenders Banks than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such the agreements referred to in clauses (i) or clause (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableabove;
(iv) 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;
(v) in the case of clause (c) of the first paragraph of this Section 9.05above, 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) restrictions contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower to the extent such encumbrances or restrictions restrict the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) any 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances and restrictions contained in any Indebtedness or any agreement relating to any Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower permitted pursuant to Section 7.01; provided, however, that either (A) such encumbrances and restrictions 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 imposed after the Closing Date shall Guarantee the Loans on a senior basis; pursuant to any agreement referred to in the definition of “Permitted Business Investment;”Subsidiaries Guaranty; and
(viii) net worth provisions any encumbrance or restriction existing under or by reason of applicable law. Nothing contained in leases and other agreements entered into by this Section 7.03 shall prevent the Borrower or any Restricted Subsidiary in of the ordinary course Borrower from restricting the sale or other disposition of business; and
(ix) encumbrances property or restrictions arising or existing by reason assets of applicable law the Borrower or any applicable rule, regulation Restricted Subsidiary of the Borrower that secure Indebtedness of the Borrower or orderany 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 not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(ai) (A) pay dividends or make any other distributions on its Capital Stock to the Borrower or any of its Restricted Subsidiaries, or (B) pay any Indebtedness or other obligations payable in cash that are owed to the Borrower or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock Equity in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and or any subordination other class or series of any such Indebtedness or other obligations being Preferred Stock shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
(bii) make any loans or advances to the Borrower or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
(ciii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary. Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (i) or (ii) above).
(b) The preceding provisions of Section 10.04(a) will not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this AgreementEffective Date, including, without limitation, the First Lien Credit AgreementsDocuments, the indenture governing Pari Passu Intercreditor Agreement, the Junior Intercreditor Agreement, the Second Lien Loan Documents, the First Lien Notes Documents and the supplemental indentures governing the Existing Notes and the New Senior Notes Pulitzer Debt Documents as in effect on such date, and any encumbrance or restriction pursuant to the Pulitzer Junior Intercreditor Agreement and the Pulitzer Pari Passu Intercreditor Agreement on the Pulitzer Debt Satisfaction Date (provided that the Pulitzer Junior Intercreditor Agreement and the Pulitzer Pari Passu Intercreditor Agreement are entered into substantially in the form thereof attached hereto as Exhibit L-1 and L-2, respectively, on the Pulitzer Debt Satisfaction Date or such other form that is not materially less favorable to the Lenders than the form attached hereto as Exhibit L-1 and L-2, respectively, on the Effective Date));
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary Person or assets pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary in effect on or before the date on which the such Person became a Restricted Subsidiary or was acquired by by, merged into or consolidated with the Borrower or a Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration infor, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by by, merged into or consolidated with the Borrower or in contemplation of the transaction transaction) or transactions) and outstanding on such dateassets were acquired by the Borrower or any Restricted Subsidiary; provided that any such encumbrance or restriction shall not extend to any Person or the assets or property of the Borrower or any other Restricted Subsidiary other than the Person and its Subsidiaries or the assets and property so acquiredacquired (and any proceeds thereof or accessions, improvements or additions thereto);
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to amendment, restatement, modification, renewal, supplement, refunding, replacement or Refinancing of an agreement referred to in the preceding clause (i) or (ii) of this paragraph or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement effecting such Refinancing or contained in such agreement immediately after giving effect to any such amendment, restatement, modification, renewal, supplement, refunding, replacement or Refinancing, as the case may be, are no not materially less favorable (as determined in any material respect Good Faith by the Borrower), taken as a whole, to the Lenders than the encumbrances and restrictions contained in such agreements referred predecessor agreement or contained in such agreement immediately prior to in clauses (i) any such amendment, restatement, modification, renewal, supplement, refunding, replacement or (ii) of this paragraph on Refinancing, as the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablecase may be;
(iv) any encumbrances or restrictions (a) arising in connection with Liens permitted under the case provisions of clause Section 10.03 and (cb) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A1) that restricts restrict in a customary manner the subletting, sublicensing, assignment or transfer of any property or asset that is subject to a lease, sublease, license or similar contract, or the assignment assignment, sublicense or transfer of any such lease, sublease, license or other contract;
, (B2) are contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
agreements or (C3) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business Purchase Money Indebtedness and (B) Capital Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredacquired (and any proceeds thereof or accessions, improvements or additions thereto);
(vi) any restriction contracts for the sale of assets, including customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Borrower pursuant to an agreement that has been entered into for the direct or indirect sale or disposition 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 dispositionSubsidiary;
(vii) customary encumbrances restrictions on cash or restrictions other deposits or net worth requirements imposed pursuant to any agreement referred to by customers or lessors or required by insurance, surety or bonding companies under contracts entered into in the definition ordinary course of “Permitted Business Investmentbusiness;”
(viii) net worth any customary provisions in leases joint venture agreements, partnership agreements, limited liability company agreements, sale leaseback agreements and other similar agreements and/or governance documents entered into in the ordinary course of business, provided that if such joint venture, partnership, limited liability company or other similar entity is a Restricted Subsidiary, such provisions will not materially adversely affect (as determined in Good Faith by the Borrower) the Borrower’s ability to make principal or interest payments on the Loans;
(ix) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and;
(ixx) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, order, permit or ordergrant;
(xi) encumbrances or restrictions contained in or arising under indentures or debt instruments or other agreements governing or evidencing Indebtedness Incurred or entered into or Preferred Equity issued by the Borrower or any Restricted Subsidiary in accordance with and subject to Section 10.01; provided that such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Borrower’s ability to make principal or interest payments pursuant to this Agreement (as determined in Good Faith by the Borrower);
(xii) under any contract, instrument or agreement relating to Indebtedness of any Foreign Subsidiary which imposes restrictions solely on such Foreign Subsidiary and its Subsidiaries;
(xiii) encumbrances or restrictions arising in connection with Hedging Obligations; and
(xiv) encumbrances or restrictions imposed by amendments, modifications, restatements, amendments and restatements, extensions, restructurings, renewals, increases, supplements, refundings, replacements or other Refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above; provided, that without duplication of any provisions in clauses (i) through (xiii) above, immediately after giving effect to any such amendment, modification, restatement, amendment and restatement, extension, restructuring, renewal, increase, supplement, refunding, replacement or other Refinancing, as the case may be, the applicable contract, instrument or other obligation, as the case may be, is, as determined in Good Faith by the Borrower, not materially more restrictive with respect to such encumbrance and other restriction, taken as a whole, than those prior to such amendment, modification, restatement, amendment and restatement, extension, restructuring, renewal, increase, supplement, refunding, replacement or other Refinancing.
Appears in 2 contracts
Sources: Amendment Agreement (Lee Enterprises, Inc), First Lien Credit Agreement (Lee Enterprises, Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Stage shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness Debt or other obligations obligation owed to the Borrower Stage or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);Subsidiary,
(bii) make any loans or advances to the Borrower Stage or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(ciii) transfer any of its property or assets to the Borrower Stage or any Restricted Subsidiary. The preceding provisions will not prohibit, except:
(ia) any encumbrance or restriction pursuant to an the New Credit Agreement or any agreement in effect at or entered into on the date Issue Date or pursuant to the issuance of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
Notes; (iib) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Debt Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Stage (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactions) Stage), and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iiic) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Debt Incurred pursuant to an agreement referred to in clause (ia) or (ii) of this paragraph or this clause (iiib) or contained in any amendment to an agreement referred to in clause (ia) or (ii) of this paragraph or this clause (iiib); PROVIDED, including successive refundingsHOWEVER, replacements or refinancings; provided 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 are no less favorable encumbrance or restriction consisting of customary nonassignment provisions in any material respect leases governing leasehold interests to the Lenders extent such 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 encumbrances and restrictions contained in ordinary course of business to the extent such agreements referred provisions restrict the transfer of the assets subject to in clauses such contracts; (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(ive) in the case of clause (ciii) of the first paragraph of this Section 9.05above, 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) restrictions contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness Debt of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements; or
(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;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions imposed by operation of the nature described in clause applicable law; (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vig) 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 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 (viih) customary encumbrances any encumbrance or restrictions imposed pursuant to any agreement referred to restriction on the sale of Receivables arising under agreements in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower connection with such sales between Stage or any a Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or orderand an Accounts 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 Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) 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 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);
(by) make any loans or advances to the Borrower or any Restricted Subsidiary (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 being shall not be deemed not to constitute such an encumbrance or restriction); or.
(cb) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions 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 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 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 Documents and the Loan Escrow Agreement, (ii) the New Senior Notes Indenture and the New Senior Notes, the New Senior Guaranteed Notes and the New Senior Guaranteed Notes Indenture, (iii) the Existing Senior Notes, Existing Senior Notes Indentures, the Existing Target Notes, the Existing Target Notes Indenture, (iv) the New Senior Notes Escrow Agreements and the 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 in effect at or entered into on the date instrument of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii) any encumbrance a Person or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by of a Restricted Subsidiary Person, entered into on or before the date on which the Restricted Subsidiary (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 Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of was merged, consolidated or otherwise combined with or into the transaction Borrower or transactionsany Restricted Subsidiary) and outstanding on such date; provided that 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 encumbrance Subsidiary shall be deemed acquired or restriction shall not extend to any assets or property of assumed by the Borrower or any other Restricted Subsidiary other than when such Person becomes the assets and property so acquiredSuccessor Company;
(iii5) 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 clause (iSection 4.07(b)(1), Section 4.07(b)(3) or (iiSection 4.07(b)(4) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iiiSection 4.07(b)(5); provided, including successive refundingshowever, replacements or refinancings; provided 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 such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableBorrower);
(iv6) in the case of clause (c) of the first paragraph of this Section 9.05, 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 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; or;
(Cc) 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;
(v7) (A) purchase money obligations for property acquired in the ordinary course of business any encumbrance or restriction pursuant to Purchase Money Obligations and (B) Capital Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredacquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) 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;
(vii9) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases leases, licenses, joint venture agreements and other similar agreements and instruments entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and;
(ix10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, governmental license or order, or required by any regulatory authority 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 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 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. The Borrower Parent will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Parent or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Subsidiary;
(b) make any loans or advances to the Borrower Parent or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Subsidiary; or
(c) transfer any of its property or assets to the Borrower Parent or any Restricted Subsidiary. The preceding provisions will not prohibit, except:
(i) any encumbrance or restriction pursuant to applicable law or an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateClosing Date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Parent or another Restricted Subsidiary (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 Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Borrower or in contemplation of the transaction or transactionsParent) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph Section 4.05(c) or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph Section 4.05(c) or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such Refinancing agreement or amendment are no less favorable in any material respect to the Lenders Holders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(iv) in the case of this clause (c) of the first paragraph of this Section 9.05), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;or
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;and
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) any restriction with respect to a Restricted Subsidiary (or Subsidiary, any of its property or assets) restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
Appears in 2 contracts
Sources: Indenture (Kansas City Southern), Indenture (Kansas City Southern)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Company, (b) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitCompany, except:
(i1) any encumbrance or restriction pursuant to applicable law or any applicable rule, regulation or order or an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateIssue Date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i1) or (ii2) of this paragraph Section 4.06 or this clause (iii3) of this Section 4.06 or contained in any amendment to an agreement referred to in clause (i1) or (ii2) of this paragraph Section 4.06 or this clause (iii)3) of this Section 4.06; provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable in any material respect to the Lenders Securityholders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(iv4) any such encumbrance or restriction consisting of customary non assignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(5) in the case of clause (c) of the first paragraph of this Section 9.05above, 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) restrictions contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi6) 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 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;
(vii7) customary encumbrances any restriction on cash or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) other deposits or net worth provisions in leases and other agreements imposed by customers under contracts entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(8) encumbrances and restrictions contained in the agreements evidencing other Indebtedness of Restricted Subsidiaries permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.04; provided, however, that the encumbrances or restrictions apply only in the event of and during the continuance of a default contained in such Indebtedness or agreement; and
(ix9) encumbrances or restrictions arising or existing by reason customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of applicable law or any applicable rule, regulation or orderbusiness.
Appears in 2 contracts
Sources: Indenture (Gutbusters Pty LTD), Dollar Securities Indenture (Gutbusters Pty 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 Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(ai) pay dividends dividends, in cash or otherwise, or make any other distributions on its Capital Stock or pay any Indebtedness Debt or other obligations obligation owed to the Borrower Company or any other Restricted Subsidiary (of the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Company;
(bii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (of the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Company; or
(ciii) transfer any of its property or assets to the Borrower Company or any other Restricted Subsidiary. Subsidiary of the Company.
(b) The preceding provisions will foregoing limitations shall not prohibitapply to:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, Issue Date (including, without limitation, under the First Lien Senior Secured Credit Agreements, the indenture governing the Second Lien Notes related Hedging Obligations and the supplemental indentures governing the Existing Notes Cash Management Services), and the New Senior Notes any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially less favorable, taken as a whole, than those contained in such agreements as in effect on such datethe Issue Date, as determined in good faith by the senior management or Board of Directors of the Company;
(ii) any encumbrance or restriction existing under or by reason of Debt Incurred pursuant to Sections 4.08 and 4.10 provided that (x) either (A) the encumbrance or restriction applies only in the event of and during the continuance of a payment default or a default with respect to a financial covenant contained in such Debt or agreement or (B) the Company determines at the time any such Debt is Incurred (or, in the case of any such Debt under a revolving Credit Facility, at the time such revolving Credit Facility is established), and at the time of any modification of the terms of any such encumbrance or restriction, that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes and any other Debt as they become due in the ordinary course that is an obligation of the Company and (y) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings or agreements (as determined by senior management or the Board of Directors of the Company in good faith at the time any such Debt is Incurred (or, in the case of any such Debt under a revolving Credit Facility, at the time such revolving Credit Facility is established), and at the time of any modification of the terms of any such encumbrance or restriction);
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary of the Company pursuant to an agreement relating to any Capital Debt Incurred or Preferred Stock or Indebtedness Incurred issued by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower (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 Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Borrower or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower Company or any other Restricted Subsidiary other than of the assets and property so acquiredCompany;
(iiiiv) any encumbrance or restriction with respect to a Restricted Subsidiary of the Company pursuant to an agreement evidencing Debt Incurred or Preferred Stock issued without violation of this Indenture or effecting a refunding, replacement or refinancing of Indebtedness Debt Incurred or Preferred Stock issued pursuant to an agreement referred to in clause (i) or Section 4.12(b)(i), (ii) of this paragraph or (iii) or this clause (iiiSection 4.12(b)(iv) or contained in any amendment to an agreement referred to in clause (i) or Section 4.12(b)(i), (ii) of this paragraph or (iii) or this clause (iiiSection 4.12(b)(iv); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, refinancing agreement or amendment, taken as a whole, are no not materially less favorable in any material respect to the Lenders Holders, as determined in good faith by the senior management or Board of Directors of the Company, than those existing immediately prior to the encumbrances and restrictions contained in entry into such agreements referred to in clauses (i) agreement, refinancing agreement or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableamendment;
(ivv) in the case of clause (c) of the first paragraph of this Section 9.054.12(a)(iii), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to 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;
(B) contained in mortgagesby virtue of any transfer of, pledges agreement to transfer, option or other security agreements permitted under this Agreement securing Indebtedness right with respect to, or 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 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 subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) any restriction with respect to a Restricted Subsidiary (of the Company or any of its property properties or assets) assets imposed pursuant to an agreement entered into for the direct or indirect sale or disposition 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;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition arising or existing by reason of “Permitted Business Investmentapplicable law, regulation or order;”
(viii) 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 provisions in leases and other agreements imposed by customers under contracts entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ixxi) encumbrances restrictions created in connection with any Receivables Facility that, in the good faith determination of senior management or restrictions arising the Board of Directors of the Company, are necessary or existing by reason of applicable law or any applicable rule, regulation or orderadvisable to effect such Receivables Facility.
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. The Borrower will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Borrower;
(b2) make any loans or advances to the Borrower or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Borrower; or
(c3) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitBorrower, except:
(iA) any encumbrance or restriction pursuant to applicable law, rule, regulation or order or an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateRestatement Date;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower (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 Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Borrower or in contemplation of the transaction or transactionsBorrower) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iSection 6.03(3)(A) or (iiSection 6.03(3)(B) of this paragraph or this clause (iiiSection 6.03(3)(C) or contained in any amendment to an agreement referred to in clause (iSection 6.03(3)(A) or (iiSection 6.03(3)(B) of this paragraph or this clause (iiiSection 6.03(3)(C); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such Refinancing agreement or amendment are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(ivD) in the case of clause (c) of the first paragraph of this Section 9.056.03(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 such lease, license or other contract;; or
(Bii) contained in mortgages, pledges or and other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vE) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) any restriction with respect to a Restricted Subsidiary (or Subsidiary, any of its property or assets) restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition 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;
(viiF) customary encumbrances any encumbrance or restriction existing under or by reason of Indebtedness or other contractual requirements of a Receivables Entity or any other party to a Qualified Receivables Transaction in connection with a Qualified Receivables Transaction; provided, however, that such restrictions imposed pursuant apply only to any agreement referred to such Receivables Entity or such other party, as applicable;
(G) purchase money obligations for property acquired in the definition ordinary course of “Permitted Business Investmentbusiness and Capitalized Lease Obligations that impose restrictions on the property purchased or leased of the nature described in Section 6.03(3);”
(viiiH) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements;
(I) restrictions on cash or other deposits or net worth provisions in leases and other agreements entered into imposed by the Borrower or any Restricted Subsidiary customers, suppliers or, in the ordinary course of business, other third parties; and
(ixJ) encumbrances with respect to any Foreign Restricted Subsidiary, any encumbrance or restrictions arising or existing by reason restriction contained in the terms of applicable law any Indebtedness, or any applicable ruleagreement pursuant to which such Indebtedness was issued, regulation if:
(i) the encumbrance or orderrestriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement; or
(ii) at the time such Indebtedness is Incurred, such encumbrance or restriction is not expected to materially affect the Borrower’s ability to make principal or interest payments on the Obligations, as determined in good faith by a Financial Officer of the Borrower, whose determination shall be conclusive.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/), First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Symmetry shall not, and will shall not permit any of the Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any of the Restricted Subsidiary to:
Subsidiaries to (a) pay dividends or make any other distributions on its Capital Stock to Symmetry or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Symmetry or any Restricted Subsidiary (including Indebtedness under the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictionsIntercompany Notes);
, (b) make any loans or advances to the Borrower Symmetry or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower Symmetry or any Restricted Subsidiary. The preceding provisions will not prohibit, except:
(i1) 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 date of this AgreementIssue Date, including, without limitation, and any encumbrance or restriction pursuant to the First Lien Security Documents or security documents entered into pursuant to the Credit Agreements, Agreement (as the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes Credit Agreement is in effect on such datethe Issue Date);
(iiB) any encumbrance or restriction with respect to Second-Priority Assets pursuant to a 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 Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Symmetry (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsSymmetry) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iiiD) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to contained in an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iA), (B) or (iiC) of clause (1) of this paragraph Section 4.05 or this clause (iiiD) or contained in any amendment to an agreement referred to in clause (iA), (B) or (iiC) of clause (1) of this paragraph Section 4.05 or this clause (iiiD); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or amendment (i) are no less favorable in any material respect to the Lenders more restrictive, taken as a whole, than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or predecessor agreement and (ii) may restrict (x) the ability of this paragraph on Novamerican Steel to pay Indebtedness owed to Symmetry, the date Company or any Subsidiary Guarantor or (y) the ability of this Agreement or the date such Restricted Subsidiary became a Restricted SubsidiaryNovamerican Steel to transfer any Intercompany Note Assets, whichever is applicable;
(iv) in the case of clause each of clauses (cx) and (y), only to the extent the terms of the first paragraph of this Section 9.05, Indebtedness being Refinanced contained a similar restriction;
(E) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 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;
(viiF) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(G) restrictions on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into the ordinary course of business, including such restrictions imposed by customers 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;
(J) provisions in agreements or instruments which prohibit the payment or making of dividends or other distributions other than on a pro rata basis;
(K) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases 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 by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ixL) encumbrances any encumbrance or restrictions arising restriction existing under or existing by reason of applicable law Indebtedness or other contractual requirements of a Receivables Entity or any applicable ruleStandard Securitization Undertaking, regulation 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 orderrestriction 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. The Borrower will not(a) Neither the Company nor a Guarantor shall, and will not neither of them shall permit any Restricted Subsidiary to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(a1) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Company, a Guarantor or any other Restricted Subsidiary,
(2) pay any Indebtedness Debt or other obligations obligation owed to the Borrower Company, a Guarantor or any other Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);Subsidiary,
(b3) make any loans or advances to the Borrower Company, a Guarantor or any other Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); Subsidiary, or
(c4) transfer any of its property or assets Property to the Borrower Company, a Guarantor or any other Restricted Subsidiary. .
(b) The preceding provisions foregoing limitations will not prohibitapply:
(i1) any encumbrance or restriction pursuant With respect to an agreement Sections 4.13(a)(1), (2), (3) and (4), to restrictions which are:
(A) in effect at on the Issue Date (as such restrictions may be amended from time to time, provided that any such amendment is not materially more restrictive as to such Restricted Subsidiary);
(B) imposed by the Notes or entered into 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;
(C) imposed by the Credit Agreement with respect to Debt permitted to be Incurred on or subsequent to the date of this AgreementIndenture (as such restrictions may be amended from time to time, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on provided that any such daterestriction is not materially more restrictive as to such Restricted Subsidiary);
(iiD) any encumbrance or restriction with respect relating to Debt of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by existing at the time it became a Restricted Subsidiary on if such restriction was not created in connection with or before the date on which the Restricted Subsidiary was acquired by the Borrower (other than Capital Stock 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or a Guarantor (as such restrictions may be amended from time to time in contemplation of the transaction or transactions) and outstanding on a manner not materially more restrictive as to such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquiredSubsidiary);
(iiiE) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing that result from the Refinancing of Indebtedness Debt Incurred pursuant to an agreement referred to in clause Section 4.13(b)(1)(A), (iB) or (iiD) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancingsabove; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are restriction is no less favorable in any material respect to the Lenders Holders of the Notes than those under the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on agreement evidencing the date of this Agreement or the date such Restricted Subsidiary became Debt so Refinanced when taken as a Restricted Subsidiary, whichever is applicablewhole;
(ivF) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license restrictions on cash or other contract;
(B) contained in mortgages, pledges deposits or net worth imposed by leases or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired entered into in the ordinary course of business and business;
(BG) Capital Lease Obligations permitted under this Agreement, in each case, that impose 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 nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredCompany, a Guarantor or any Restricted Subsidiary by such governmental authority;
(viH) 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 transfer, disposition or distribution of such Property pending the closing of such sale, including any 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 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;
(viiL) restrictions on Debt Incurred by Foreign Restricted Subsidiaries; provided that such restrictions are then customary encumbrances or restrictions imposed pursuant to any agreement referred to for Debt of such type Incurred in the definition of “Permitted Business Investment;”such jurisdiction; or
(viiiM) net worth provisions in leases and other agreements entered into by restrictions resulting from any U.S. or foreign law, rule, regulation or order applicable to the Borrower 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 other agreements that restrict assignment of such agreements 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 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; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or orderbusiness with respect only to the Property the subject thereof.
Appears in 1 contract
Sources: Indenture (Intertape Woven Products Services S.A. De C.V.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Company, (b) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitCompany, except:
(i) any encumbrance or restriction pursuant to an the Bank Facility or any other agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateIssue Date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Refinancing Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph Section 4.5 or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph Section 4.5 or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to any such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Noteholders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableagreements;
(iv) in the case of clause (c) of the first paragraph of this Section 9.05, any such encumbrance or restriction:
(A) that restricts restriction consisting of customary non-assignment provisions in a customary manner leases to the extent such provisions restrict the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, the lease or the assignment property leased thereunder or transfer of any such lease, license or other contractin purchase money financings;
(Bv) in the case of Section 4.5(c), restrictions contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) encumbrances or restrictions imposed by operation of any applicable law, rule, regulation or order; and
(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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
Appears in 1 contract
Sources: Indenture (Chiles Magellan LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock held by the Company 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 Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the 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 common stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(by) make any loans or advances to the Borrower 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 being shall not be deemed not to constitute such an encumbrance or restriction); or.
(cb) transfer any The provisions of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions Section 4.05
(a) will not prohibit:
(i1) any encumbrance or restriction pursuant to (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 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 Security Documents or Additional Intercreditor Agreement;
(2) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date instrument of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii) any encumbrance a Person or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by of a Restricted Subsidiary Person, entered into on or before the date on which the Restricted Subsidiary such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary entered into or in contemplation of the transaction or transactionsconnection with such transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) 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 refinances, an agreement or instrument referred to in clause (1) or (2) of this Section 4.05(b) or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clause (i1) or (ii2) of this paragraph Section 4.05(b) or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii3); provided, including successive refundingshowever, replacements or refinancings; provided 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 such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableBoard of Directors of the Issuer);
(iv4) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges 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 not prohibited by this 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
(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;
(v5) (Ax) purchase money obligations for property acquired in the ordinary course of business any encumbrance or restriction pursuant to Purchase Money Obligations and (B) Capital Capitalized Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredacquired or (y) any encumbrance or restriction pursuant to a joint venture, co-investment or similar agreements (and any agreements ancillary or consequential thereto) that 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);
(vi6) 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;
(vii7) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases leases, licenses, joint venture agreements, co-investment and other similar or related agreements and instruments, in each case, entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; andbusiness 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;
(ix) 8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers 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;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.06 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in this Indenture, the New Notes Indenture, the RCF Facility Agreement as of the Issue Date, the Piraeus Term Loan Facility Agreement as of the Issue Date, the Intercreditor Agreement and any Additional Intercreditor Agreement, together with the security documents associated therewith as in effect on the Issue Date after giving pro forma effect to the Transactions; or
(12) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.09.
Appears in 1 contract
Sources: Indenture (Intrum ZRT)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted 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:
(a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Borrower Company or any other Restricted Subsidiary;
(b) make any loans or advances to the Company; or
(c) transfer any of its Property to the 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, 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 (1) 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 common equity shall not be deemed a restriction on the ability to make distributions on Capital Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(b2) make any loans or advances to the Borrower or any Restricted Subsidiary (the subordination of (including the application of any standstill requirements to) loans or and advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the Restricted Subsidiary was acquired by the Borrower (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower Company or a Restricted Subsidiary to other Debt incurred by the extent such encumbrances Company or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (shall not be deemed a restriction on the ability to make loans or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or orderadvances.
Appears in 1 contract
Sources: Indenture (Novelis Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will On and after the Escrow Release Date, the Issuer shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Subsidiary, (b) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit, 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 date of this Agreement, including, without limitationEscrow Release Date (including the Credit Agreement in effect on the Escrow Release Date, the First Lien Credit AgreementsAdditional Bridge Facility in effect on the Escrow Release Date, the 2024 Notes and the related guarantees, the indenture governing relating to the Second Lien 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 supplemental indentures governing related guarantees and similar restrictions contained in the Existing Notes and documentation entered into in connection with any future debt securities issued or guaranteed by the New Senior Notes in effect on such dateIssuer;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a contractual obligation binding on such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Issuer (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsIssuer) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iSections 4.05(i)(A) or (iiB) of this paragraph or this clause (iiiC) or contained in any amendment to an agreement referred to in clause (iSection 4.05(i)(A) or (iiB) of this paragraph or this clause (iiiC); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable in any material respect to the Lenders Issuer or any Restricted Subsidiary (as reasonably determined by the Issuer in good faith) than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(ivD) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) any 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 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;
(viiE) 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 imposed 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 agreement 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 definition contracts, instruments or obligations referred to in clauses (A) through (N) of “Permitted Business Investment;”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,
(viiiii) net worth 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 by the Borrower or any Restricted Subsidiary in the ordinary course of business; and.
(ixiii) encumbrances For purposes of determining compliance with this Section 4.05, (x) the priority of any Preferred Stock in receiving dividends or restrictions arising liquidating distributions prior to dividends or existing liquidating distributions being paid on other Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (y) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary to other Indebtedness Incurred by reason of applicable law the Issuer or any applicable rule, regulation such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or orderadvances.
Appears in 1 contract
Sources: Indenture (Western Digital Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Company, (b) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitCompany, except:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this AgreementIssue Date, includingand any amendments, without limitationmodifications, the First Lien Credit Agreementsrestatements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such daterenewals, increases, supplements, refundings, replacements or refinancings thereof;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) this Indenture and the Notes;
(4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i1), (2) or (ii3) of this paragraph covenant or this clause (iii4) or contained in any amendment to an agreement referred to in clause (i1), (2) or (ii3) of this paragraph covenant or this clause (iii4); PROVIDED, including successive refundingsHOWEVER, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable in any material respect to the Lenders Holders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(iv5) any such encumbrance or restriction consisting of customary nonassignment provisions in contracts;
(6) in the case of clause (c) of the first paragraph of this Section 9.05above, 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) restrictions contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi7) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment8) applicable law;”
(viii9) restrictions on cash or other deposits or net worth provisions in leases and other agreements imposed by customers under contracts entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or ordercontained in Indebtedness under Credit Facilities permitted to be Incurred under Section 10.6.
Appears in 1 contract
Sources: Indenture (Cccisg Capital Trust)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the Borrower Company or any a Restricted Subsidiary Subsidiary, (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(bii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary or (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(ciii) transfer any of its property or assets to the Borrower Company or any other Restricted Subsidiary. The preceding provisions will not prohibit:
, except for such encumbrances or restrictions existing under or by reason of (ia) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of (x) this Agreement, including, without limitationIndenture, the First Lien Credit Agreements, Facility or the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes Discount Notes, in each case as in effect on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, however, that any such date;
(ii) any encumbrance amendments, restatements, renewals, replacements or restriction 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 a such dividend and other payment restrictions, to the Company or any Restricted Subsidiary pursuant than those contained in the Credit Facility or such indenture, as the case may be, (or, if more restrictive, than those contained in this Indenture) immediately prior to an agreement any such amendment, restatement, renewal, replacement or refinancing, or (y) the indenture relating to any Public Debt issued after the date hereof, which encumbrances or restrictions are not materially more restrictive, when taken as a whole, with respect to such dividend and other payment restrictions, to the Company or any Restricted Subsidiary than those contained in this Indenture, (b) applicable law, (c) any instrument governing Indebtedness or Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the Restricted Subsidiary was of an Acquired Person acquired by the Borrower (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all Company or any portion of its Restricted Subsidiaries as in effect at the funds utilized time of such acquisition (except to consummate, the transaction or series of related transactions pursuant to which extent such Restricted Subsidiary became a Restricted Subsidiary or Indebtedness was acquired by the Borrower incurred in connection with or in contemplation of the transaction such acquisition or transactionsin violation of Section 4.13; provided, however, that (1) and outstanding on such date; provided that any such encumbrance or restriction shall is not extend applicable to any Person, or the properties or assets or property of the Borrower or any other Restricted Subsidiary Person, other than the assets Acquired Person, and property so acquired;
(iii2) the consolidated net income of such Acquired Person for any encumbrance or restriction with respect period prior to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to such acquisition shall not be taken into account in clause (i) or (ii) determining whether such acquisition was permitted by the terms of this paragraph or this clause Indenture, (iiid) or contained customary non-assignment provisions in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license leases or other contract;
agreements entered into the ordinary course of business, (Be) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Purchase Money Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that only impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
, (vif) 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 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 (viig) 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 encumbrances provisions restricting subletting or restrictions imposed pursuant to assignment of any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements lease entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
, nor (ixb) encumbrances Liens permitted under this Indenture, shall in and of themselves be considered a restriction on the ability of the applicable Restricted Subsidiary to transfer such agreements or restrictions arising or existing by reason of applicable law or any applicable ruleassets, regulation or orderas the case may be.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Holdings shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Holdings or any of its Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Subsidiaries;
(b2) make any loans or advances to the Borrower Holdings or any of its Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Subsidiaries; or
(c3) transfer any of its property or assets to the Borrower Holdings or any of its Restricted Subsidiary. The preceding provisions will not prohibitSubsidiaries, except:
(ia) any encumbrance or restriction pursuant to applicable law or an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateClosing Date;
(iib) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Holdings (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 Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Borrower or in contemplation of the transaction or transactionsHoldings) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iiic) any encumbrance or restriction with respect to a Restricted Subsidiary (x) pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (ia) or (iib) of this paragraph Section 4.05 or this clause (iiic) or (y) contained in any amendment to an agreement referred to in clause (ia) or (iib) of this paragraph Section 4.05 or this clause (iii)c) or (z) pursuant to any other agreement regarding Indebtedness otherwise permitted by Section 4.03; provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such Refinancing agreement, amendment or other agreement are no less favorable in any material respect to the Lenders Securityholders than the encumbrances and restrictions contained in such predecessor agreements referred or, with respect to agreements entered into at or after the Closing Date, the most restrictive agreement in clauses (i) existence at or (ii) of this paragraph on prior to the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableClosing Date;
(ivd) in the case of clause (c) of the first paragraph of this Section 9.053), 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;; or
(Bii) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(ve) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) any restriction with respect to a Restricted Subsidiary (or Subsidiary, any of its property or assets) restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition 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;
(viif) customary encumbrances any encumbrance or restrictions imposed pursuant restriction relating to any agreement referred to Purchase Money Indebtedness or Capitalized Lease Obligations for property acquired in the definition ordinary course of “Permitted Business Investmentbusiness that imposes restrictions on the ability of Holdings or a Restricted Subsidiary to sell, lease or transfer the acquired property to Holdings or its Restricted Subsidiaries;”
(viiig) net worth provisions in leases and restrictions on cash or other agreements deposits imposed by customers under contracts entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(h) any encumbrance or restriction contained in joint venture agreements and other similar agreements entered into in the ordinary course of business and customary for such types of agreements; and
(ixi) encumbrances any encumbrance or restrictions arising or existing by reason restriction pursuant to an agreement for Indebtedness under Section (2)(e) and (2)(g) of applicable law or any applicable rule, regulation or orderSection 4.03.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary Subsidiary, (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(bii) make any loans or advances to the Borrower Company or any Restricted Subsidiary or (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(ciii) transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary. The preceding provisions will not prohibit, except:
(i1) any encumbrance or restriction arising under applicable law;
(2) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateIssue Date;
(ii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (other than Capital Stock or Indebtedness Incurred as consideration inin 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 Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing constituting Refinancing Indebtedness of Indebtedness Incurred pursuant to an agreement referred to in clause (i1) or (ii2) of this paragraph Section or this clause (iii3) or contained in any amendment to an agreement referred to in clause (i1) or (ii2) of this paragraph Section or this clause (iii3); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in any such agreements referred refinancing agreement or amendment are no less favorable to the Securityholders than encumbrances and restrictions contained in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableagreements;
(iv5) in the case of clause (c) of the first paragraph of this Section 9.05iii), 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) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by the Indenture or (C) contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi6) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix7) encumbrances Purchase Money Indebtedness and Capital Lease Obligations permitted by clause (viii) of Section 4.03. Exh. T3C-51 Nothing contained in this Section 4.05 shall prevent the Company from entering into any agreement or restrictions arising instrument providing for the incurrence of Permitted Liens, nor shall this Section 4.05 be deemed to restrict the sale or existing by reason other disposition of applicable law property or assets of the Company or any applicable rule, regulation or orderof its Restricted Subsidiaries in compliance with the other provisions of the Indenture.
Appears in 1 contract
Sources: Indenture (Texon International PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Company, (b) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitCompany, except:
(i1) any encumbrance or restriction contained in the Credit Agreement in effect on the Issue Date;
(2) any encumbrance or restriction pursuant to applicable law or any applicable rule, regulation or order or an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateIssue Date;
(ii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that 62 53
(4) any such encumbrance or restriction shall not extend consisting of customary non-assignment provisions in leases governing leasehold interests to any assets or property the extent such provisions restrict the transfer of the Borrower lease or any other Restricted Subsidiary other than the assets and property so acquiredleased thereunder;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv5) in the case of clause (c) of the first paragraph of this Section 9.05above, any encumbrance or restriction:
(A) that restricts restrictions contained in a customary manner the sublettingsecurity agreements, 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 participation agreements or other contract;
(B) contained in mortgagessimilar financing documents, pledges leases or other security agreements permitted under this Agreement mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary (including with respect to Capital Lease Obligations, Synthetic Lease Financings and Attributable Debt) to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgagessecurity agreements, pledges participation agreements 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 similar financing documents, leases or any Restricted Subsidiarymortgages;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi6) 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 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;
(vii7) customary any restriction on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) encumbrances and restrictions contained in agreements evidencing other Indebtedness of Restricted Subsidiaries permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.03; provided, however, that the encumbrances or restrictions imposed pursuant to any agreement referred to apply only in the definition event of “Permitted Business Investmentand during the continuance of a default contained in such Indebtedness or agreement;”
(viii9) net worth customary provisions in leases joint venture agreements and other similar agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix10) any encumbrances or restrictions arising imposed by any amendments, modifications, restatements, renewals, increases, supplements or existing by reason Refinancings of applicable law the contracts, instruments or any applicable ruleobligations referred to in clauses (1) through (9) above; provided, regulation however, that such amendments, modifications, restatements, renewals, increases, supplements or orderRefinancings are, in the good faith judgment of the Board of Directors, no more restrictive with respect to such dividend and other payment or transfer restrictions than those contained 63 54 in the dividend or other payment or transfer restrictions prior to such amendment, modification, restatement, renewal, increase, supplement or Refinancing.
Appears in 1 contract
Sources: Indenture (Travelcenters Realty Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiary 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 (a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness or other obligations owed obligation owed, to the Borrower Company or any other Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Subsidiary, (b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets Property to the Borrower Company or any other Restricted Subsidiary. The preceding provisions Such limitation will not prohibit:
apply (1) with respect to clauses (a), (b) and (c), to encumbrances and restrictions (i) in existence under or by reason of any agreements (not otherwise described in clause (iii)) in effect on the Issue Date, (ii) relating to Indebtedness of a Restricted Subsidiary and existing at such Restricted Subsidiary at the time it became a Restricted Subsidiary if such encumbrance or restriction pursuant to an agreement was not created in effect at connection with or entered into on the date in anticipation of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the Restricted Subsidiary was acquired by the Borrower (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
Company, (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an (x) the Credit Facility as in effect on the Issue Date and (y) any agreement effecting a refundingwhich amends, replacement extends, renews, refinances, replaces or refinancing refunds the Credit Facility, PROVIDED, HOWEVER, that in the case of Indebtedness Incurred this subclause (y), such restrictions or encumbrances are no less favorable to the holders of the Notes than those restrictions or encumbrances pursuant to the Credit Facility as in effect on the Issue Date; PROVIDED, FURTHER, HOWEVER, that in the case of subclauses (x) and (y), the 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, 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 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 (B) provide that in no event shall any encumbrance or restriction pursuant to the Credit Facility prohibit distributions for Indebtedness on the 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 (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 clause the immediately preceding clauses (i1)(i) or and (ii) of this paragraph or this clause above and in clauses (iii2)(i) or contained in any amendment to an agreement referred to in clause (i) or and (ii) of this paragraph below, PROVIDED, such encumbrance or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect restriction is no more restrictive to such Restricted Subsidiary contained in any such agreement are no and is not materially less favorable in any material to the 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 the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c) of the first paragraph of this Section 9.05only, to (i) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset restriction relating to Indebtedness that is subject permitted to a leasebe 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, license (ii) any encumbrance or similar contractrestriction 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 transfer any Restricted Subsidiary and customary provisions in other agreements that restrict assignment of any such lease, license agreements or other contract;
rights thereunder or (Biv) customary restrictions contained in mortgages, pledges or other security asset sale agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict limiting the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or ordersale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Company, (b) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitCompany, except:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Issue Date, including the Credit Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph Section 4.05 or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph Section 4.05 or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable in any material respect to the Lenders Securityholders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(iv) any such encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests solely to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(v) in the case of clause (c) of the first paragraph of this Section 9.05above, 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) restrictions contained in mortgagessecurity agreements, pledges mortgages or other security agreements permitted under this Agreement leases securing Indebtedness of the Borrower or a Restricted Subsidiary solely to the extent such encumbrances or restrictions restrict the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 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
(vii) customary encumbrances or restrictions any restriction imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or orderlaw.
Appears in 1 contract
Sources: Indenture (Bremen Bearings 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 Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(ai) pay dividends dividends, in cash or otherwise, or make any other distributions on its Capital Stock or pay any Indebtedness Debt or other obligations obligation owed to the Borrower Company or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Guarantor;
(bii) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Guarantor; or
(ciii) transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary. Subsidiary Guarantor.
(b) The preceding provisions will foregoing limitations shall not prohibitapply to:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, Issue Date (including, without limitation, under the First Lien Senior Secured Credit Agreements, the indenture governing the Second Lien Notes related Hedging Obligations and the supplemental indentures governing the Existing Notes Cash Management Services), and the New Senior Notes any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially less favorable, taken as a whole, than those contained in such agreements as in effect on such datethe Issue Date, as determined by the Company;
(ii) any encumbrance or restriction existing under or by reason of Debt Incurred pursuant to Sections 4.08 and 4.10 provided that (x) either (A) the encumbrance or restriction applies only in the event of and during the continuance of a payment default or a default with respect to a financial covenant contained in such Debt or agreement or (B) the Company determines at the time any such Debt is Incurred (or, in the case of any such Debt under a revolving Credit Facility, at the time such revolving Credit Facility is established), and at the time of any modification of the terms of any such encumbrance or restriction, that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes as they become due;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary of the Company pursuant to an agreement relating to any Capital Debt Incurred or Preferred Stock or Indebtedness Incurred issued by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower (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 Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Borrower or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower Company or any other Restricted Subsidiary other than of the assets and property so acquiredCompany;
(iiiiv) any encumbrance or restriction with respect to a Restricted Subsidiary of the Company pursuant to an agreement evidencing Debt Incurred or Preferred Stock issued without violation of this Indenture or effecting a refunding, replacement or refinancing of Indebtedness Debt Incurred or Preferred Stock issued pursuant to an agreement referred to in clause (iSection 4.12(b)(i), (ii) or (ii(iii) of this paragraph or this clause (iiiSection 4.12(b)(iv) or contained in any amendment to an agreement referred to in clause (iSection 4.12(b)(i), (ii) or (ii(iii) of this paragraph or this clause (iiiSection 4.12(b)(iv); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement, refinancing agreement or amendment, taken as a whole, are no not materially less favorable in any material respect to the Lenders Holders, as determined by the Company, than those existing immediately prior to the encumbrances and restrictions contained in entry into such agreements referred to in clauses (i) agreement, refinancing agreement or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableamendment;
(ivv) in the case of clause (c) of the first paragraph of this Section 9.05Section 4.12(a)(iii), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to 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;
(B) contained in mortgagesby virtue of any transfer of, pledges agreement to transfer, option or other security agreements permitted under this Agreement securing Indebtedness right with respect to, or 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 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 subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) any restriction with respect to a Restricted Subsidiary (of the Company or any of its property properties or assets) assets imposed pursuant to an agreement entered into for the direct or indirect sale or disposition 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;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition arising or existing by reason of “Permitted Business Investmentapplicable law, regulation or order;”
(viii) 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 provisions in leases and other agreements imposed by customers under contracts entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ixxi) encumbrances restrictions created in connection with any Receivables Facility that are necessary or restrictions arising or existing advisable to effect such Receivables Facility, as determined by reason of applicable law or any applicable rule, regulation or orderthe Company.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer will not, and will not permit any Restricted Subsidiary that is not a Guarantor to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
that is not a Guarantor (adirectly or indirectly) to (A) pay dividends or make any other distributions on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any of its Restricted Subsidiary Subsidiaries (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being common stock shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
, (bB) make any loans or advances to the Borrower or any Restricted Subsidiary Issuer (it being understood that the subordination of loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restriction); or
advances) or (cC) sell, lease or transfer any of its property or assets to the Borrower Issuer or any of its Restricted Subsidiary. The preceding provisions will not prohibitSubsidiaries, except:
(i1) with respect to clauses (a)(A), (a)(B) and (a)(C):
(A) (x) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this AgreementIssue Date, including, without limitationincluding pursuant to the ABL Credit Facility and the related documentation and related Hedging Obligations and Cash Management Obligations and the related documentation, the First Lien Credit Agreements2026 Senior Notes Indenture, the indenture governing 2026 Senior Notes and the Second related guarantees and the related documentation, the Third Lien Notes Indenture, the Third Lien Notes and the supplemental indentures governing related guarantees, the Existing Third Lien Notes Security Documents and the New Senior related documentation and (y) this Indenture, the Notes, the Guarantees and the First Lien Notes in effect on such dateSecurity Documents;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to or the property or assets acquired by the Issuer or any Capital Stock or Indebtedness Incurred by a of its Restricted Subsidiary Subsidiaries existing on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Issuer (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsIssuer) and outstanding on such datedate and any amendments, modification, restatements, renewals, extensions, increases, supplements, refunding, replacements or refinancing thereof; provided that the encumbrances and restrictions in any such encumbrance amendments, modifications, restatements, renewals, extensions, increases, supplements, refunding, replacements or restriction shall refinancing are entered into in the ordinary course of business or not extend to any assets 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 property such other agreements as in effect on the date of the Borrower or any other Restricted Subsidiary other than the assets and property so acquiredacquisition;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iA) or (iiB) of clause (1) of this paragraph Section 4.11 or this clause (iiiC) or contained in any amendment to amendment, modification, restatement, renewal, extension, increase, supplement, refunding, or replacement of an agreement referred to in clause (iA) or (iiB) of clause (1) of this paragraph Section 4.11 or this clause (iiiC); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or 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 than Issue Date;
(D) existing under, by reason of or with respect to Refinancing Indebtedness; provided, that the encumbrances and restrictions contained in the agreements governing such Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(E) provisions restricting cash or other 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 referred relate solely to such Foreign Subsidiaries and do not affect in clauses 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 Issuer;
(iH) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of some or all of the Capital Stock or any property and assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(I) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness permitted to be Incurred under this Indenture, or any agreement pursuant to which such Indebtedness was issued;
(J) restrictions or conditions governing any Indebtedness Incurred in connection with Permitted Receivables Financing if such restrictions or conditions apply only to the Receivables Assets that are the subject of the Permitted Receivables Financing, and restrictions or conditions imposed on any Receivables Subsidiary in connection with any Permitted Receivables Financing;
(K) provisions limiting the disposition or distribution of assets or property or transfer of Capital Stock in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, limited liability company organizational documents, and other similar agreements entered into in the ordinary course of business, consistent with past practice or with the approval of the Board of Directors of the Issuer (or the Board of Directors of any Parent Entity), which limitation is applicable only to the assets, property or Capital Stock that are the subject of such agreements;
(L) restrictions on cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(M) customary provisions in joint venture agreements, operating or similar agreements, asset sale agreements and stock sale agreements arising in connection with the entering into of such transactions;
(N) any restriction arising under applicable law, rule, regulation or administrative or court order;
(O) any encumbrance or restriction existing under or by reason of the ABL Credit Facility;
(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 such Indebtedness are no less favorable to the Issuer, taken as a whole, as determined by the Issuer in good faith, than the provisions contained in the ABL Credit Facility, the 2026 Senior Notes Indenture or the Third Lien Notes Indenture, in each case, as in effect on the Issue Date or (iiy) any encumbrance or restriction contained in such indebtedness that does not (except upon a default or event of this paragraph 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 date 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 this Agreement an agreement that such Subsidiary is a party to or entered into before the date on which such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;; 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
(ivR) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) restriction contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such security agreements or mortgages;
(2) with respect to clause (a)(C) above:
(A) any encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(B) any encumbrance or restriction existing by virtue of any transfer of, pledges agreement to transfer, option or other security agreements; orright with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary thereof not otherwise prohibited by this Indenture;
(C) pursuant any encumbrance or restriction existing under, by reason of or with respect to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (Ai) purchase money obligations for property acquired in the ordinary course of business and or (Bii) Capital Lease Obligations permitted under this Agreement, in each case, capital leases or operating leases that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredacquired or covered thereby;
(viD) any encumbrance or restriction with respect arising or agreed to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary thereof in any manner material to the Issuer or any Restricted Subsidiary thereof;
(E) non-assignment provisions or subletting restrictions in contracts, leases and licenses entered into in the ordinary course of business;
(F) encumbrances on property that exist at the time the property was acquired by the Issuer or a Restricted Subsidiary, provided such encumbrances were not put in place in anticipation of such acquisition;
(G) customary provisions in asset sale agreements and stock sale agreements arising in connection with the entering into of such transactions; and
(ix3) any encumbrances or restrictions arising 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 existing by reason refinancings of applicable law the contracts, instruments or any applicable ruleobligations referred to in Sections 4.11(a)(1) and 4.11(a)(2); provided that such amendments, regulation modifications, restatements, renewals, increases, supplements, refundings, replacements or orderrefinancings (other than with respect to the ABL Credit Facility) are, in the good faith judgment of the Issuer, no more restrictive on the whole with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends dividends, or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);,
(b) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restriction); advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary. The preceding provisions will Subsidiary (it being understood that such transfers shall not prohibitinclude any type of transfer described in clause (a) or (b) above); except:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of Effective Date, including pursuant to this Agreement, including, without limitationthe Indenture, the First Lien Credit AgreementsSubsidiary Guarantees, the indenture governing the Second Lien Notes ABL Credit Facility and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
European Credit Facility; (ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsBorrower) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Issuer shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (Issuer; provided that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination shall not be deemed a restriction of any such Indebtedness or other obligations being deemed not the ability to constitute such encumbrances or restrictions)make distributions of Capital Stock;
(b) make any loans or advances to the Borrower or any Restricted Subsidiary (Issuer; provided that the subordination of loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary being shall not be deemed not a restriction of the ability to constitute such an encumbrance make loans or restriction)advances; or
(c) transfer any of its property Property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitIssuer, except with respect to clauses (a), (b) and (c) above:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, Issue Date including, without limitationfor the avoidance of doubt, the First Lien RBL Credit AgreementsAgreement, this Indenture, the indenture governing Notes and the Guarantees thereof, the 1.75 Lien Credit Agreement, the Second Lien Notes Credit Agreement and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateUnsecured Notes;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary Subsidiary, or otherwise binding on such Restricted Subsidiary, on or before prior to the date on which the such Restricted Subsidiary was acquired or was so designated by the Borrower Issuer or any Restricted Subsidiary (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsIssuer) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i1) or (ii2) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii)above; provided, including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such Refinancing agreement or amendment are no less favorable in any material respect to the Lenders more restrictive than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(iv4) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) any 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 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;
(vii5) customary encumbrances or and restrictions imposed pursuant to any agreement referred to contained in agreements of the type described in the definition of the term “Permitted Business InvestmentInvestments”;”
(viii6) net worth 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) any encumbrance or restriction pursuant to supermajority voting requirements under corporate charters, bylaws, stockholders agreements and similar documents and agreements; and
(10) any encumbrance or restriction pursuant to an instrument or agreement governing Indebtedness permitted by the terms of this 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 contract;
(6) encumbrances and other agreements restrictions contained in contracts entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of 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
(ix7) encumbrances any encumbrance or restrictions arising restriction pursuant to provisions with respect to the disposition or existing by reason distribution of applicable law assets or any applicable ruleProperty in operating agreements, regulation or ordersale-leaseback agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business.
Appears in 1 contract
Sources: Indenture (Exco Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Hanover will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Hanover or any Restricted Subsidiary Subsidiary; (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(b2) make any loans or advances to the Borrower Hanover or any Restricted Subsidiary Subsidiary; or (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c3) transfer any of its property or assets to the Borrower Hanover or any Restricted Subsidiary. The preceding provisions will not prohibit:
prohibit (i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreementsthis Agreement, the indenture governing the Second Lien Notes 2001B Participation Agreement and the supplemental indentures governing the Existing Notes and the New Senior Notes Credit Agreement in effect on such date;
; (ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the such Restricted Subsidiary was acquired by the Borrower Hanover (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Hanover or in contemplation of the transaction or transactionstransaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iSection 9.5(i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (iSection 9.5(i) or (ii) of this paragraph or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or amendment are no less favorable in any material respect to the Lenders Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in clauses (iSection 9.5(i) or (ii) of this paragraph on the date of this Agreement Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
; (iv) in the case of clause (c3) of the first paragraph of this Section 9.059.5, 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 securing Indebtedness of the Borrower Hanover or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
or (Cc) 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;
; (v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c3) of the first paragraph of this Section 9.05 9.5 on the property so acquired;
; (vi) any Purchase Money Note or other Indebtedness or contractual requirements incurred with respect to a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; (vii) any 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
; and (viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
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 Restricted Subsidiary (other than a Subsidiary Guarantor) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than a Subsidiary Guarantor) to:
(a1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
(b2) make any loans or advances to the Borrower Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
(c3) sell, lease or transfer any of its assets or property or assets to the Borrower Company or any Restricted Subsidiary. The preceding provisions will Subsidiary (it being understood that such transfers shall not prohibitinclude any type of transfer described in clause (1) or (2) above).
(b) Section 4.08(a) shall not apply to any encumbrances or restrictions existing under or by reason of:
(i1) contractual encumbrances or restrictions of the Company or any encumbrance or restriction pursuant to an agreement of its Restricted Subsidiaries in effect at or entered into on the date of this AgreementIssue Date, including, without limitation, pursuant to the First Lien Senior Credit AgreementsFacility, the indenture governing Ex-Im Credit Facility, related Swap Contracts and Indebtedness permitted pursuant to clause (3) of Section 4.09(b);
(2) this Indenture, the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateSubsidiary Guarantees;
(ii3) 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 with respect to a Restricted Subsidiary pursuant to an agreement relating is not applicable to any Capital Stock Person, or Indebtedness Incurred by a Restricted Subsidiary on the assets or before the date on which the Restricted Subsidiary was acquired by the Borrower (property of any Person, other than Capital Stock or Indebtedness Incurred as consideration inthe Person and its Subsidiaries, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower Person and its Subsidiaries, so acquired or any other Restricted Subsidiary other than the designated (including after-acquired assets and property so acquiredproperty);
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv4) in the case of clause (c3) of Section 4.08(a), Permitted Liens or Liens otherwise permitted to be Incurred under the first paragraph provisions of this Section 9.05, any encumbrance 4.12 that limit the right of the debtor to dispose of assets 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 contractLiens;
(B5) contained in mortgagespurchase money obligations, pledges mortgage financings, Capitalized Lease Obligations and similar obligations or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (c3) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.of
Appears in 1 contract
Sources: Indenture (Viasat Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(ai) (A) pay dividends or make any other distributions on its Capital Stock to the Borrower or any of its Restricted Subsidiaries, or (B) pay any Indebtedness or other obligations payable in cash that are owed to the Borrower or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock Equity in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and or any subordination other class or series of any such Indebtedness or other obligations being Preferred Stock shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
(bii) make any loans or advances to the Borrower or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
(ciii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary. Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (i) or (ii) above).
(b) The preceding provisions of Section 10.04(a) will not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this AgreementEffective Date, including, without limitation, the First Lien Credit AgreementsCreditLoan Documents, the indenture governing Pari Passu Intercreditor Agreement, the Junior Intercreditor Agreement, the Second Lien Loan Documents, the First Lien Notes Documents and the supplemental indentures governing the Existing Notes and the New Senior Notes Pulitzer Debt Documents as in effect on such date, and any encumbrance or restriction pursuant to the Pulitzer Junior Intercreditor Agreement and the Pulitzer Pari Passu Intercreditor Agreement on the Pulitzer Debt Satisfaction Date (provided that the Pulitzer Junior Intercreditor Agreement and the Pulitzer Pari Passu Intercreditor Agreement are entered into substantially in the form thereof attached hereto as Exhibit L-1 and L-2, respectively, on the Pulitzer Debt Satisfaction Date or such other form that is not materially less favorable to the Lenders than the form attached hereto as Exhibit L-1 and L-2, respectively, on the Effective Date));
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary Person or assets pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary in effect on or before the date on which the such Person became a Restricted Subsidiary or was acquired by by, merged into or consolidated with the Borrower or a Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration infor, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by by, merged into or consolidated with the Borrower or in contemplation of the transaction transaction) or transactions) and outstanding on such dateassets were acquired by the Borrower or any Restricted Subsidiary; provided that any such encumbrance or restriction shall not extend to any Person or the assets or property of the Borrower or any other Restricted Subsidiary other than the Person and its Subsidiaries or the assets and property so acquiredacquired (and any proceeds thereof or accessions, improvements or additions thereto);
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to amendment, restatement, modification, renewal, supplement, refunding, replacement or Refinancing of an agreement referred to in the preceding clause (i) or (ii) of this paragraph or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement effecting such Refinancing or contained in such agreement immediately after giving effect to any such amendment, restatement, modification, renewal, supplement, refunding, replacement or Refinancing, as the case may be, are no not materially less favorable (as determined in any material respect Good Faith by the Borrower), taken as a whole, to the Lenders than the encumbrances and restrictions contained in such agreements referred predecessor agreement or contained in such agreement immediately prior to in clauses (i) any such amendment, restatement, modification, renewal, supplement, refunding, replacement or (ii) of this paragraph on Refinancing, as the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablecase may be;
(iv) any encumbrances or restrictions (a) arising in connection with Liens permitted under the case provisions of clause Section 10.03 and (cb) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A1) that restricts restrict in a customary manner the subletting, sublicensing, assignment or transfer of any property or asset that is subject to a lease, sublease, license or similar contract, or the assignment assignment, sublicense or transfer of any such lease, sublease, license or other contract;
, (B2) are contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
agreements or (C3) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any other Restricted Subsidiary Subsidiary, (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(bii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary or (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(ciii) transfer any of its property or assets to the Borrower Company or any other Restricted Subsidiary. The preceding provisions will not prohibit; except:
(ia) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of 1998 Issue Date, including pursuant to this Agreement, including, without limitationIndenture, the First Lien Revolving Credit Agreements, the indenture governing the Second Lien Notes Facility and the supplemental indentures governing the Existing Senior Secured Notes and the New Senior Notes then in effect on such date;
existence; (iib) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iiic) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause the preceding clauses (ia) or (iib) of this paragraph or this clause (iiic) or contained in any amendment to an agreement referred to in clause the preceding clauses (ia) or (iib) of this paragraph or this clause (iiic); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in any such agreements referred refinancing agreement or amendment are no less favorable to the Holders of the Securities taken as a whole, than the original encumbrances and restrictions contained in clauses such agreements; (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(ivd) in the case of clause (ciii) of the first paragraph of this Section 9.053.6, 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) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
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 Subsidiary;
contracts; (v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vie) any 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 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;
; (viif) customary encumbrances or restrictions imposed pursuant to any agreement referred to created in connection with a Qualified Receivables Transaction that, in the definition good faith determination of “Permitted Business Investment;”
the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity; and (viiig) net worth provisions in leases and other agreements entered into any restriction by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason operation of applicable law or any applicable rule, regulation or orderlaw.
Appears in 1 contract
Sources: Indenture (Smithfield Foods Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Company, (b) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitCompany, except:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date Issue Date or, in the case of this the Credit Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes as in effect on such datethe Acquisition Closing Date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of evidencing Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) without violation of any provisions of this paragraph or this clause (iii) or Indenture including those contained in any amendment to an agreement referred to in clause (i1) or (ii2) of this paragraph or this clause (iii)Section 4.05; provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary are, in the good faith judgment of the Board of Directors, no more restrictive in any material respect than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiaryin effect at, whichever is applicableor entered into on, the Issue Date;
(iv4) any such 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 or in licenses entered into in the ordinary course of business to the extent such licenses restrict the transfer of the license or the property licensed thereunder;
(5) in the case of clause (c) of the first paragraph of this Section 9.05above, 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) restrictions contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi6) 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 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;
(vii7) customary encumbrances or any restriction in any agreement that is not more restrictive than the restrictions imposed pursuant under the terms of the Credit Agreement as in effect on the Acquisition Closing Date;
(8) in the case of clause (c) above, restrictions on the transfer of assets subject to any agreement referred to in Lien imposed by the definition holder of “Permitted Business Investmentsuch Lien;”
(viii9) net worth provisions with respect to the disposition or distribution of assets or property in leases joint venture agreements and other similar agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(10) any restriction arising under applicable law, regulation or order;
(11) any restriction contained in any agreement or instrument governing Capital Stock (other than Disqualified Stock) of any Restricted Subsidiary that is in effect on the date such Restricted Subsidiary is acquired by the Company or a Restricted Subsidiary; and
(ix12) encumbrances any restriction on cash or restrictions arising other deposits or existing net worth imposed by reason customers under contracts entered into in the ordinary course of applicable law or any applicable rule, regulation or orderbusiness.
Appears in 1 contract
Sources: Indenture (Intersil Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Subsidiary;
(b2) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Subsidiary; or
(c3) transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to this Indenture or an agreement in effect at or entered into on the date of this Agreement, Indenture (including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes this Indenture and the supplemental indentures governing the Existing Notes and the New Senior Notes Credit Agreement in effect on such date) or any encumbrance or restriction pursuant to any Indebtedness Incurred after the Issue Date no more restrictive, taken as a whole, than the encumbrances or restrictions pursuant to the Credit Agreement or this Indenture;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of the transaction or transactionssuch transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement Refinancing Indebtedness or refinancing of Indebtedness under the Credit Agreement Incurred to refinance Indebtedness pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or amendment are no less favorable favorable, taken as a whole, in any material respect to the Lenders holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or and (ii) of this paragraph on the date of this Agreement Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableapplicable or are ordinary and customary for a financing of that type and would not materially adversely affect our ability to make payments on the Notes (in each case as determined in good faith by the Board of Directors of the Company);
(iv) in the case of clause (c3) of the first paragraph of this Section 9.054.15, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c3) of the first paragraph of this Section 9.05 4.15 on the property so acquired;
(vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) any restriction with respect to a Restricted Subsidiary contained in any agreement or instrument governing Capital Stock (other than Disqualified Stock) of any Restricted Subsidiary that is in effect on the date such Restricted Subsidiary is acquired by the Company (and is not incurred in contemplation of such acquisition);
(ix) 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; and
(x) any agreement or instrument placing contract restrictions or restrictions applicable only to a Securitization Entity effected in connection with or Liens on receivables or related assets which are the subject of, a Permitted Securitization Transaction.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower (a) Following the Completion Date, the Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary, provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock common stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(by) make any loans or advances to the Borrower 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 being shall not be deemed not to constitute such an encumbrance or restriction); or.
(cb) transfer any The provisions of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions Section 4.07(a) hereof will not prohibit:
(i1) 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 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 Completion Date (as determined in good faith by the Company);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of this Indenture, 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 Credit Facility and the guarantees thereof, the Intercreditor Agreement (or any additional intercreditor agreement) and the Senior Secured Notes Security Documents;
(4) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date instrument of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii) any encumbrance a Person or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by of a Restricted Subsidiary Person, entered into on or before the date on which the Restricted Subsidiary (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 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 Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of was merged, consolidated or otherwise combined with or into the transaction Company or transactionsany Restricted Subsidiary) and outstanding on such date; provided that 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 encumbrance Subsidiary shall be deemed acquired or restriction shall not extend to any assets or property of assumed by the Borrower Company or any other Restricted Subsidiary other than when such Person becomes the assets and property so acquiredSuccessor Company;
(iii5) 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) 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 clause (iSection 4.07(b)(1), Section 4.07(b)(3) or (iiSection 4.07(b)(4) of this paragraph hereof or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iiiSection 4.07(b)(5); provided, including successive refundingshowever, replacements or refinancings; provided 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 such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableCompany);
(iv6) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements; or;
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary; or
(D) pursuant to the terms of any license, authorization, concession or permit;
(v7) (A) purchase money obligations for property acquired in the ordinary course of business any encumbrance or restriction pursuant to Purchase Money Obligations and (B) Capital Capitalized Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredacquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) 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;
(vii9) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases leases, licenses, joint venture agreements and other similar agreements and instruments entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and;
(ix10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, governmental license or order, or required by any regulatory authority 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 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 Holders of the Notes than (i) the encumbrances and restrictions contained in the Existing Credit Facility or the New Credit Facility on the 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 Company) and where, in the case of clause (ii), the Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions (x) will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes as and when they become due or (y) such encumbrances and restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness;
(14) any encumbrance or restrictions arising in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing that, in the good faith determination of an Officer or the Board of Directors of the Company , are necessary or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06 hereof.
(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 2025 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. The Borrower (a) Each of Superior Energy and Issuer will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock to Superior Energy, Issuer or any Restricted Subsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Borrower Superior Energy, Issuer or any of their Restricted Subsidiary Subsidiaries (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
(b2) make any loans or advances to the Borrower Superior Energy, Issuer or any of their Restricted Subsidiary Subsidiaries (it being understood that the subordination of 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 being Subsidiaries shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
(c3) sell, lease or transfer any of its property or assets to the Borrower Superior Energy, Issuer or any of their Restricted Subsidiary. Subsidiaries (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above).
(b) The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this AgreementIssue Date, including, without limitationincluding any such Debt Facility and the Notes, the First Lien Credit Agreements, the indenture governing the Second Lien Exchange Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such datethis Indenture;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by Superior Energy or Issuer, as the Borrower case may be (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactions) Issuer), and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i1) or (ii2) of this paragraph Section 4.08(b) or this clause (iii3) or contained in any amendment to an agreement referred to in clause (i1) or (ii2) of this paragraph Section 4.08(b) or this clause (iii3); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable in any material respect to the Lenders more restrictive than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(iv4) any such encumbrance or restriction consisting of customary non-assignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(5) in the case of clause (c3) of the first paragraph of this Section 9.054.08(a) hereof, 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) 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 to the extent such encumbrances or restrictions restrict the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v6) provisions limiting the disposition or distribution of assets or property in joint venture agreements, limited liability agreements, joint operating agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business, which limitation is applicable only to the assets that are the subject of such agreements;
(A7) restrictions imposed by customers on cash or other amounts deposited by them pursuant to contracts entered into in the ordinary course of business;
(8) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances restrictions on the property purchased or restrictions leased of the nature described in clause (c3) of the first paragraph of this Section 9.05 on the property so acquired4.08(a) hereof;
(vi9) any restriction with respect to a Restricted Subsidiary (or any restrictions on the transfer of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to required by any regulatory authority having jurisdiction over Superior Energy, Issuer or such restriction) pending the closing of such sale or dispositionRestricted Subsidiary;
(vii10) customary encumbrances or and restrictions imposed pursuant to any agreement referred to contained in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements contracts entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of Superior Energy, Issuer and their Restricted Subsidiaries to realize the value of, property or assets of Issuer or any Restricted Subsidiary in any manner material to Superior Energy, Issuer or any Restricted Subsidiary;
(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
(ix13) 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 arising at a Restricted Subsidiary level comparable to those applicable to Issuer) or existing (y) other Indebtedness Incurred or Preferred Stock issued by reason of applicable law 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 applicable ruleRestricted Subsidiary or pay any Indebtedness owed to Issuer or any Restricted Subsidiary, regulation (ii) make any loans or orderadvances to Issuer or any Restricted Subsidiary or (iii) transfer any of its property or assets to Issuer or any Restricted Subsidiary, except:
(1) any encumbrance or restriction pursuant to any Debt Facilities and any agreement in effect at or entered into on the Issue Date; and
(2) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the immediately preceding clause (1) of this Section 4.08(c) or this clause (2) or contained in any amendment to an agreement referred to in the immediately preceding clause (1) of this Section 4.08(c) of this clause (2); provided, however, that the encumbrances and restrictions with respect to Superior Energy contained in any such refinancing agreement or amendment are no more restrictive in any material respect than the encumbrances and restrictions with respect to Superior Energy contained in such predecessor agreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary (other than a Subsidiary Guarantor) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than a Subsidiary Guarantor) to:
(a1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
(b2) make any loans or advances to the Borrower Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
(c3) sell, lease or transfer any of its assets or property or assets to the Borrower Company or any Restricted Subsidiary. The preceding provisions will Subsidiary (it being understood that such transfers shall not prohibitinclude any type of transfer described in clause (1) or (2) above).
(b) Section 4.08(a) shall not apply to any encumbrances or restrictions existing under or by reason of:
(i1) contractual encumbrances or restrictions of the Company or any encumbrance or restriction pursuant to an agreement of its Restricted Subsidiaries in effect at or entered into on the date of this AgreementIssue Date, including, without limitation, pursuant to the Senior Credit Facilities, the Security Documents, the First Lien Credit AgreementsIntercreditor Agreement (and, the indenture governing 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 supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateSubsidiary Guarantees;
(ii3) 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 with respect to a Restricted Subsidiary pursuant to an agreement relating is not applicable to any Capital Stock Person, or Indebtedness Incurred by a Restricted Subsidiary on the assets or before the date on which the Restricted Subsidiary was acquired by the Borrower (property of any Person, other than Capital Stock or Indebtedness Incurred as consideration inthe Person and its Subsidiaries, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower Person and its Subsidiaries, so acquired or any other Restricted Subsidiary other than the designated (including after-acquired assets and property so acquiredproperty);
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv4) in the case of clause (c3) of Section 4.08(a), Permitted Liens that limit the first paragraph right of this Section 9.05, any encumbrance the debtor to dispose of assets 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 contractLiens;
(B5) contained in mortgagesPurchase Money Obligations, pledges mortgage financings, Capitalized Lease Obligations and similar obligations or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (c3) of Section 4.08(a) with respect to the first paragraph of this Section 9.05 on the assets or property so 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);
(vi6) any restriction encumbrances or restrictions contained in agreements for the sale, transfer or other disposition of assets or property, including without limitation customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Company pursuant to an agreement that has been entered into for the direct sale, transfer or indirect sale or other disposition 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;
(vii7) customary encumbrances restrictions on cash, Cash Equivalents or restrictions other deposits or net worth imposed pursuant to any agreement referred to by customers, suppliers or landlords under contracts entered into in the definition ordinary course of “Permitted Business Investmentbusiness or as required by insurance surety or bonding companies;”
(viii) net worth 8) any provisions in leases 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 Borrower Company or any Restricted Subsidiary that (x) are customary and entered into in the ordinary course of business; andbusiness 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);
(ix10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or any license, permit or other authorization issued by any governmental or regulatory authority;
(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 Debt Facilities or 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 make payments of principal or interest payments on the Notes when due (as determined by the Company in good faith); or
(13) any encumbrances or 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 in the immediately preceding clauses (1) through (12) of this Section 4.08(b); provided, however, that the encumbrances or restrictions contained in such amendment, restatement, modification, renewal, increase, supplement, extension, refunding, replacement or refinancing are, in the good faith judgment of the Company, 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 refinancing.
Appears in 1 contract
Sources: Indenture (Maxar Technologies Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower (a) Following the Completion Date, the Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary, provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock common stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(by) make any loans or advances to the Borrower 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 being shall not be deemed not to constitute such an encumbrance or restriction); or.
(cb) transfer any The provisions of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions Section 4.07(a) hereof will not prohibit:
(i1) 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 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 Completion Date (as determined in good faith by the Issuer);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of this Indenture, the Notes, the Note Guarantees, the Existing Senior Notes, Existing Senior Notes Indentures, the New Senior Notes, the New Senior Notes Indenture, the Holdco Notes, the Holdco Notes Guarantee, the Holdco Notes Indenture, the Existing Credit Facility and the guarantees thereof, the New Credit Facility and the guarantees thereof, the Intercreditor Agreement, any Additional Intercreditor Agreement, the Notes Escrow Agreement, the New Senior Notes Escrow Agreement, the Holdco Notes Escrow Agreement, and the Notes Security Documents;
(4) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date instrument of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii) any encumbrance a Person or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by of a Restricted Subsidiary Person, entered into on or before the date on which the Restricted Subsidiary (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 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 Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of was merged, consolidated or otherwise combined with or into the transaction Company or transactionsany Restricted Subsidiary) and outstanding on such date; provided that 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 encumbrance Subsidiary shall be deemed acquired or restriction shall not extend to any assets or property of assumed by the Borrower Company or any other Restricted Subsidiary other than when such Person becomes the assets and property so acquiredSuccessor Company;
(iii5) 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 clause (iSection 4.07(b)(1), Section 4.07(b)(3) or (iiSection 4.07(b)(4) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iiiSection 4.07(b)(5); provided, including successive refundingshowever, replacements or refinancings; provided 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 such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableIssuer);
(iv6) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements; or;
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary; or
(D) pursuant to the terms of any license, authorization, concession or permit;
(v7) (A) purchase money obligations for property acquired in the ordinary course of business any encumbrance or restriction pursuant to Purchase Money Obligations and (B) Capital Capitalized Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredacquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) 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;
(vii9) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases leases, licenses, joint venture agreements and other similar agreements and instruments entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and;
(ix10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, governmental license or order, or required by any regulatory authority 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 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 Holders of the Notes than (i) the encumbrances and restrictions contained in the Existing Credit Facility or the New Credit Facility on the 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 Issuer) and where, in the case of clause (ii), the Issuer determines at the time of issuance of such Indebtedness that such encumbrances or restrictions (x) will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes as and when they become due or (y) such encumbrances and restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness;
(14) any encumbrance or restrictions arising in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing that, in the good faith determination of an Officer or the Board of Directors of the Company, are necessary or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06 hereof.
Appears in 1 contract
Sources: Indenture (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will On and after the Escrow Release Date, the Issuer shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Subsidiary, (b) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit, 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 date of this Agreement, including, without limitationEscrow Release Date (including the Credit Agreement in effect on the Escrow Release Date, the First Lien Credit AgreementsAdditional Bridge Facility in effect on the Escrow Release Date, the indenture governing the Second Lien 2023 Notes and the supplemental indentures governing related guarantees, the Existing 2023 Notes Indenture, this Indenture, the Notes and the New Senior 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 effect on such datethe documentation entered into in connection with any future debt securities issued or guaranteed by the Issuer;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a contractual obligation binding on such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Issuer (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsIssuer) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iSections 4.05(i)(A) or (iiB) of this paragraph or this clause (iiiC) or contained in any amendment to an agreement referred to in clause (iSection 4.05(i)(A) or (iiB) of this paragraph or this clause (iiiC); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable in any material respect to the Lenders Issuer or any Restricted Subsidiary (as reasonably determined by the Issuer in good faith) than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(ivD) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) any 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 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;
(viiE) 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 imposed 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 agreement 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 definition contracts, instruments or obligations referred to in clauses (A) through (N) of “Permitted Business Investment;”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,
(viiiii) net worth 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 by the Borrower or any Restricted Subsidiary in the ordinary course of business; and.
(ixiii) encumbrances For purposes of determining compliance with this Section 4.05, (x) the priority of any Preferred Stock in receiving dividends or restrictions arising liquidating distributions prior to dividends or existing liquidating distributions being paid on other Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (y) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary to other Indebtedness Incurred by reason of applicable law the Issuer or any applicable rule, regulation such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or orderadvances.
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 Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (it being understood that (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common other Capital Stock shall be deemed not to be a restriction on the ability to make distributions on Capital Stock and any (ii) the subordination of any Indebtedness or other obligations shall be deemed not to be a restriction on the ability to pay such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictionsobligations);
(b2) make any loans or advances to the Borrower Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary being shall be deemed not to constitute such an encumbrance be a restriction on the ability to make loans or restrictionadvances); or
(c3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary. The preceding provisions Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) of this Section 11.12(a)).
(b) Section 11.12(a) will not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(i1) any encumbrance contractual encumbrances or restriction restrictions pursuant to an agreement the Financing Agreement, the First Lien Notes Indenture, the Second Lien Notes Indenture, the Financing Agreement Security Agreement, the Runoff Security Agreement and all other agreements and other documentation relating to or governing the collection, disposition or administration of WMMRC-Related Assets, the Convertible Preferred Stock and, in each case, all related documentation, and other agreements or instruments in effect at or entered into on the date of Closing Date;
(2) this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateNote Guarantees;
(ii3) 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 with respect is not applicable to a Restricted Subsidiary pursuant 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 relating referred to any Capital Stock in clauses (1), (2) or Indebtedness Incurred by (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 the Senior Management of the Company, not materially restrictive, taken as a Restricted Subsidiary whole, than the encumbrances and restrictions contained the agreements and instruments referred to in clauses (1), (2) or (3) of this Section 11.12(b) on the Closing Date or before the date on which the Restricted Subsidiary was acquired by the Borrower (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by merged with or into the Borrower Company or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv5) in the case of clause (c3) of Section 11.12(a), Liens permitted to be Incurred under Section 11.10 that limit the first paragraph right of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer debtor to dispose of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any assets securing such lease, license or other contractIndebtedness;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A6) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c3) of the first paragraph of this Section 9.05 11.12(a) on the property so acquired;
(vi7) any restriction contracts for the sale or other disposition of assets, including customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Company pursuant to an agreement that has been entered into for the direct or indirect sale or disposition 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 dispositionSubsidiary;
(vii) customary encumbrances 8) restrictions on cash or restrictions other deposits or net worth imposed pursuant to any agreement referred to by customers under contracts entered into in the definition ordinary course of “Permitted Business Investmentbusiness;”
(viii9) net worth any customary provisions in leases leases, subleases or licenses and other agreements entered into by the Borrower Company or any Restricted Subsidiary in the ordinary course of business; and;
(ix10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or any other Regulatory Requirement;
(11) customary supermajority voting provisions and other customary provisions with respect to the disposition or distribution of assets, each contained in corporate charters, bylaws, stockholders’ agreements, limited liability company agreements, partnership agreements, and other similar agreements, in each case of a 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 is not applicable to any Person, or any assets, as applicable, other than such Qualified Securitization Entity or such Receivables;
(13) customary lock-up agreements entered into in connection with a proposed sale or issuance of Capital Stock;
(14) any agreement or instrument that prohibits the 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 any reciprocal easement agreement; and
(16) other Indebtedness or Preferred Stock permitted to be Incurred pursuant to Section 11.09 that, in the good faith determination of the Board of Directors of the Company are not materially more restrictive, taken as a whole, than those applicable to the Company in this Agreement or the Financing Agreement on the Closing Date (which results in encumbrances or restrictions at a Restricted Subsidiary level comparable to those applicable at the Company level under this Agreement or the Financing Agreement).
(c) In each case set forth in Section 11.12(b) above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, repairs, additions, attachments and 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. The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends dividends, or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
, (bii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restriction); or
advances) or (ciii) transfer any of its property or assets to the Borrower Company or any other Restricted Subsidiary. The preceding provisions will Subsidiary (it being understood that such transfers shall not prohibit:
include any type of transfer described in clause (i) or (ii) above), except: (a) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of Issue Date, including pursuant to this Agreement, including, without limitationIndenture, the First Lien Credit AgreementsSubsidiary Guarantees, the indenture governing ABL Credit Facility, the Second Lien Notes European Credit Facility and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
Rabobank Term Loan; (iib) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company or a Restricted Subsidiary (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iiic) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refundingrefinancing, refunding or replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause the preceding clauses (ia) or (iib) of this paragraph or this clause (iiic) or contained in any amendment to amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in clause the preceding clauses (ia) or (iib) of this paragraph or this clause (iiic); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders Holders, taken as a whole, than the original encumbrances and restrictions contained in such agreements referred to in clauses agreements; (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(ivd) in the case of clause (ciii) of the first paragraph of this Section 9.053.6, 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 such 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 securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict the transfer of the property subject to such mortgages, pledges security agreements or other security agreements; or
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 Subsidiary;
contracts; (v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vie) 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 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;
; (viif) customary encumbrances or restrictions imposed pursuant to any agreement referred to created in connection with a Qualified Receivables Transaction that, in the definition good faith determination of “Permitted Business Investment;”
the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity; (viiig) net worth any customary provisions in leases leases, subleases or licenses and other agreements entered into by the Borrower Company or any Restricted Subsidiary in the ordinary course of business; and
(ixh) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Non-Guarantor Restricted Subsidiary; provided that such encumbrances or restrictions arising will not materially affect the Company’s ability to make anticipated principal and interest payments on the Securities (as determined in good faith by the Board of Directors of the Company) or existing (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to Section 3.3; and (i) any restriction by reason operation of applicable law or any applicable rule, regulation or orderlaw.
Appears in 1 contract
Sources: Indenture (Smithfield Foods Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower (a) Following the Completion Date, the Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary, provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock common stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(by) make any loans or advances to the Borrower 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 being shall not be deemed not to constitute such an encumbrance or restriction); or.
(cb) transfer any The provisions of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions Section 4.07(a) hereof will not prohibit:
(i1) 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 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 Completion Date (as determined in good faith by the Issuer);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of this Indenture, the Notes, the Note Guarantees, the Existing Senior Notes, Existing Senior Notes Indentures, the New Senior Notes, the New Senior Notes Indenture, the Holdco Notes, the Holdco Notes Guarantee, the Holdco Notes Indenture, the Existing Credit Facility and the guarantees thereof, the New Credit Facility and the guarantees thereof, the Intercreditor Agreement, any Additional Intercreditor Agreement and the Notes Security Documents;
(4) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date instrument of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii) any encumbrance a Person or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by of a Restricted Subsidiary Person, entered into on or before the date on which the Restricted Subsidiary (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 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 Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of was merged, consolidated or otherwise combined with or into the transaction Company or transactionsany Restricted Subsidiary) and outstanding on such date; provided that 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 encumbrance Subsidiary shall be deemed acquired or restriction shall not extend to any assets or property of assumed by the Borrower Company or any other Restricted Subsidiary other than when such Person becomes the assets and property so acquiredSuccessor Company;
(iii5) 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 clause (iSection 4.07(b)(1), Section 4.07(b)(3) or (iiSection 4.07(b)(4) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iiiSection 4.07(b)(5); provided, including successive refundingshowever, replacements or refinancings; provided 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 such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableIssuer);
(iv6) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements; or;
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary; or
(D) pursuant to the terms of any license, authorization, concession or permit;
(v7) (A) purchase money obligations for property acquired in the ordinary course of business any encumbrance or restriction pursuant to Purchase Money Obligations and (B) Capital Capitalized Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredacquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) 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;
(vii9) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases leases, licenses, joint venture agreements and other similar agreements and instruments entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and;
(ix10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, governmental license or order, or required by any regulatory authority 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 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 Holders of the Notes than (i) the encumbrances and restrictions contained in the Existing Credit Facility or the New Credit Facility on the 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 Issuer) and where, in the case of clause (ii), the Issuer determines at the time of issuance of such Indebtedness that such encumbrances or restrictions (x) will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes as and when they become due or (y) such encumbrances and restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness;
(14) any encumbrance or restrictions arising in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing that, in the good faith determination of an Officer or the Board of Directors of the Company, are necessary or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06 hereof.
(c) Any encumbrance or restriction subject to Section 4.07 that is created or becomes effective following the 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. The Borrower Issuer will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the Borrower or any Restricted Subsidiary Issuer, (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(bii) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(ciii) transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit, except:
(i1) any encumbrance or restriction pursuant to an a Credit Facility or any agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
Issue Date; (ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness or Capital Stock Incurred or Indebtedness Incurred issued by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Issuer or a Restricted Subsidiary (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Issuer or in contemplation of the transaction or transactionsa Restricted Subsidiary) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i1) or (ii2) of this paragraph or this clause (iii) Section 4.6 or contained in any amendment to an agreement referred to in clause (i1) or (ii2) of this paragraph or this clause (iii)Section 4.6; provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment taken as a whole are no less favorable in any material respect to the Lenders Noteholders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements referred to as determined in clauses good faith by the Board of Directors of the Issuer; (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv4) in the case of clause (c) of the first paragraph of this Section 9.05iii), 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 to the extent such encumbrances encumbrance or restrictions restrict the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi6) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
Appears in 1 contract
Sources: Indenture (Spectrasite Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Issuer shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) to pay dividends or make any other distributions on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Issuer, (b) to make any loans or advances to the Borrower Issuer or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) to transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibit:Issuer, except
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, including, without limitation, Issue Date (including the First Lien Credit Agreements, the indenture governing the Second Lien Notes Agreement and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateNotes);
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Issuer (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsIssuer) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) 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 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 an agreement referred to in clause clauses (i) or to (iixv) of this paragraph or this clause (iii) or contained in any amendment above, to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii)the extent applicable; provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable in any material respect to the Lenders more restrictive, taken as a whole, than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
Appears in 1 contract
Sources: Indenture (Williams Scotsman Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Issuer shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) to pay dividends or make any other distributions on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Issuer, (b) to make any loans or advances to the Borrower Issuer or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) to transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibit:Issuer, except
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Issue Date (including the Credit Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes Security Documents and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateIndenture);
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Issuer (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsIssuer) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph Section 4.10 or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph Section 4.10 or this clause (iii); PROVIDED, including successive refundingsHOWEVER, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable in any material respect to the Lenders more restrictive, taken as a whole, than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableagreements;
(iv) 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;
(v) in the case of clause (ciii) of the first paragraph of this Section 9.05above, 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) restrictions contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 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;
(vii) customary encumbrances any encumbrance or restrictions imposed restriction pursuant to an agreement entered into after the Issue Date governing Indebtedness Incurred by a Restricted Subsidiary in compliance with Section 4.09; PROVIDED, HOWEVER, that the encumbrances and restrictions with respect to any Restricted Subsidiary contained in any such agreement referred are no more restrictive, taken as a whole, than the encumbrances and restrictions with respect to such Restricted Subsidiary in the definition of “Permitted Business InvestmentCredit Agreement on the Issue Date;”
(viii) net worth provisions in leases and other agreements any encumbrance or 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 into) than those available from third party financing sources;
(ix) 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 the Borrower a Securitization Subsidiary;
(x) any encumbrance or restriction pursuant to this Indenture;
(xi) any encumbrance or restriction pursuant to applicable law or any Restricted Subsidiary 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; andbusiness 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;
(ixxiii) encumbrances provisions with respect to the disposition or restrictions arising distribution of assets or existing 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 applicable law or any applicable ruleColumbia in reliance upon, regulation or orderand in compliance with, clause (xv) of Section 4.09.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer will not, and will not permit any Restricted Subsidiary that is not a Guarantor to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
that is not a Guarantor (adirectly or indirectly) to (A) pay dividends or make any other distributions on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any of its Restricted Subsidiary Subsidiaries (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being common stock shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
, (bB) make any loans or advances to the Borrower or any Restricted Subsidiary Issuer (it being understood that the subordination of loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restriction); or
advances) or (cC) sell, lease or transfer any of its property or assets to the Borrower Issuer or any of its Restricted Subsidiary. The preceding provisions will not prohibitSubsidiaries, except:
(i1) with respect to clauses (a)(A), (a)(B) and (a)(C):
(A) (x) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this AgreementIssue Date, includingincluding pursuant to the ABL Credit Facility and the related documentation and related Hedging Obligations and Cash Management Obligations and the related documentation, without limitationthe 2026 Senior Notes Indenture, the 2026 Senior Notes and the related guarantees and the related documentation, the First Lien Credit AgreementsIndenture, the indenture governing the Second First Lien Notes and the supplemental indentures governing related guarantees, the Existing First Lien Notes Security Documents and the New Senior related documentation and (y) this Indenture, the Notes, the Guarantees and the Third Lien Notes in effect on such dateSecurity Documents;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to or the property or assets acquired by the Issuer or any Capital Stock or Indebtedness Incurred by a of its Restricted Subsidiary Subsidiaries existing on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Issuer (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsIssuer) and outstanding on such datedate and any amendments, modification, restatements, renewals, extensions, increases, supplements, refunding, replacements or refinancing thereof; provided that the encumbrances and restrictions in any such encumbrance amendments, modifications, restatements, renewals, extensions, increases, supplements, refunding, replacements or restriction shall refinancing are entered into in the ordinary course of business or not extend to any assets materially more restrictive, taken as a whole, than those contained in the ABL Credit Facility, this Indenture, the 2026 Senior Notes Indenture, the First Lien Indenture, existing Indebtedness or property such other agreements as in effect on the date of the Borrower or any other Restricted Subsidiary other than the assets and property so acquiredacquisition;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iA) or (iiB) of clause (1) of this paragraph Section 4.11 or this clause (iiiC) or contained in any amendment to amendment, modification, restatement, renewal, extension, increase, supplement, refunding, or replacement of an agreement referred to in clause (iA) or (iiB) of clause (1) of this paragraph Section 4.11 or this clause (iiiC); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or 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 than Issue Date;
(D) existing under, by reason of or with respect to Refinancing Indebtedness; provided, that the encumbrances and restrictions contained in the agreements governing such Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(E) provisions restricting cash or other 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 referred relate solely to such Foreign Subsidiaries and do not affect in clauses 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 Issuer;
(iH) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of some or all of the Capital Stock or any property and assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(I) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness permitted to be Incurred under this Indenture, or any agreement pursuant to which such Indebtedness was issued;
(J) restrictions or conditions governing any Indebtedness Incurred in connection with Permitted Receivables Financing if such restrictions or conditions apply only to the Receivables Assets that are the subject of the Permitted Receivables Financing, and restrictions or conditions imposed on any Receivables Subsidiary in connection with any Permitted Receivables Financing;
(K) provisions limiting the disposition or distribution of assets or property or transfer of Capital Stock in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, limited liability company organizational documents, and other similar agreements entered into in the ordinary course of business, consistent with past practice or with the approval of the Board of Directors of the Issuer (or the Board of Directors of any Parent Entity), which limitation is applicable only to the assets, property or Capital Stock that are the subject of such agreements;
(L) restrictions on cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(M) customary provisions in joint venture agreements, operating or similar agreements, asset sale agreements and stock sale agreements arising in connection with the entering into of such transactions;
(N) any restriction arising under applicable law, rule, regulation or administrative or court order;
(O) any encumbrance or restriction existing under or by reason of the ABL Credit Facility;
(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 such Indebtedness are no less favorable to the Issuer, taken as a whole, as determined by the Issuer in good faith, than the provisions contained in the ABL Credit Facility, the 2026 Senior Notes Indenture, this Indenture or the First Lien Indenture, in each case, as in effect on the Issue Date or (iiy) any encumbrance or restriction contained in such indebtedness that does not (except upon a default or event of this paragraph 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 date 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 this Agreement an agreement that such Subsidiary is a party to or entered into before the date on which such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;; 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
(ivR) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) restriction contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such security agreements or mortgages;
(2) with respect to clause (a)(C) above:
(A) any encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(B) any encumbrance or restriction existing by virtue of any transfer of, pledges agreement to transfer, option or other security agreements; orright with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary thereof not otherwise prohibited by this Indenture;
(C) pursuant any encumbrance or restriction existing under, by reason of or with respect to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (Ai) purchase money obligations for property acquired in the ordinary course of business and or (Bii) Capital Lease Obligations permitted under this Agreement, in each case, capital leases or operating leases that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredacquired or covered thereby;
(viD) any encumbrance or restriction with respect arising or agreed to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary thereof in any manner material to the Issuer or any Restricted Subsidiary thereof;
(E) non-assignment provisions or subletting restrictions in contracts, leases and licenses entered into in the ordinary course of business;
(F) encumbrances on property that exist at the time the property was acquired by the Issuer or a Restricted Subsidiary, provided such encumbrances were not put in place in anticipation of such acquisition;
(G) customary provisions in asset sale agreements and stock sale agreements arising in connection with the entering into of such transactions; and
(ix3) any encumbrances or restrictions arising 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 existing by reason refinancings of applicable law the contracts, instruments or any applicable ruleobligations referred to in Sections 4.11(a)(1) and 4.11(a)(2); provided that such amendments, regulation modifications, restatements, renewals, increases, supplements, refundings, replacements or orderrefinancings (other than with respect to the Senior Obligations) are, in the good faith judgment of the Issuer, no more restrictive on the whole with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (aA) (i) pay dividends or make any other distributions to the Borrower or any of the Restricted 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, (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(bB) make any loans or advances to the Borrower or any Restricted Subsidiary (the subordination of loans C) sell, lease or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property properties or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitBorrower, 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 date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateClosing Date;
(iib) [reserved];
(c) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock amendment, modification, restatement or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the Restricted Subsidiary was acquired by the Borrower (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion renewal of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iSection 6.04(i)(a) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iiic); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no or amendment are, as determined by an Officer in good faith, not materially less favorable in any material respect to the Lenders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(ivd) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 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;
(viie) customary encumbrances or restrictions imposed pursuant to any agreement referred to provisions in the definition of “Permitted Business Investmentjoint venture agreements, asset sale agreements, stock sale agreements, limited liability company organizational documents and other similar agreements;”
(viiif) restrictions on cash, Cash Equivalents, marketable securities, investment grade securities or other deposits or net worth provisions in imposed by customers or lessors (including governmental entities) under contracts or leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(g) this Agreement, the Subsidiary Guarantees and the Security Documents;
(h) 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
(ixii) encumbrances 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) agreements with respect to Purchase Money Indebtedness and Capital Lease Obligations otherwise permitted hereunder that impose restrictions arising on the property purchased or existing by reason of applicable law or any applicable rule, regulation or orderleased.
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 Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) 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 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);
(by) make any loans or advances to the Borrower or any Restricted Subsidiary (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 being Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, shall not be deemed not to constitute such an encumbrance or restriction); or.
(cb) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions 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 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 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 in effect at or entered into on the date instrument of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii) any encumbrance a Person or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by of a Restricted Subsidiary Person, entered into on or before the date on which the Restricted Subsidiary (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 Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of was merged, consolidated or otherwise combined with or into the transaction Borrower or transactionsany Restricted Subsidiary) and outstanding on such date; provided that 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 encumbrance Subsidiary shall be deemed acquired or restriction shall not extend to any assets or property of assumed by the Borrower or any other Restricted Subsidiary other than when such Person becomes the assets and property so acquiredSuccessor Company;
(iii5) 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 clause (iSection 4.07(b)(1), Section 4.07(b)(3) or (iiSection 4.07(b)(4) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iiiSection 4.07(b)(5); provided, including successive refundingshowever, replacements or refinancings; provided 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 such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableBorrower);
(iv6) in the case of clause (c) of the first paragraph of this Section 9.05, 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 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; or;
(Cc) 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;
(v7) (A) purchase money obligations for property acquired in the ordinary course of business any encumbrance or restriction pursuant to Purchase Money Obligations and (B) Capital Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredacquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) 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;
(vii9) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases leases, licenses, joint venture agreements and other similar agreements and instruments entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and;
(ix10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, governmental license or order, or required by any regulatory authority 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 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 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 Issuer will not, and will not permit any of its Restricted Subsidiary 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:
(a1) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Borrower Issuer or any of its Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Subsidiaries;
(b2) make any loans or advances to the Borrower Issuer or any of its Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Subsidiaries; or
(c3) sell, lease or otherwise transfer any of its property properties or assets to the Borrower Issuer or any of its Restricted Subsidiary. The Subsidiaries.
(b) However, the preceding provisions restrictions will not prohibitapply to encumbrances or restrictions existing under or by reason of:
(i1) any encumbrance or restriction pursuant to an agreement agreements as in effect at or entered into on the date of this AgreementIssue Date, including, without limitation, the First Lien including agreements governing Existing Indebtedness and Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes Facilities as in effect or entered into on the Issue Date, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such datedividend and other payment restrictions than those contained in those agreements on the Issue Date;
(ii2) this Indenture, the Notes, the Guarantees and the Collateral Documents;
(3) applicable law, rule, regulation or order;
(4) any encumbrance instrument governing Indebtedness or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by other agreement of a Restricted Subsidiary on or before the date on which the Restricted Subsidiary was Person acquired by the Borrower Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (other than except to the extent such Indebtedness or Capital Stock or Indebtedness Incurred other agreement was incurred, issued or entered into, as consideration inapplicable, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower in connection with or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such acquisition), which encumbrance or restriction shall is not extend applicable to any Person, or the properties or assets or property of the Borrower or any other Restricted Subsidiary Person, other than the Person, or the property or assets and property of the Person, so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiarythat, whichever is applicable;
(iv) in the case of clause (c) of Indebtedness, such Indebtedness was permitted by the first paragraph terms of this Section 9.05, any encumbrance or restriction:Indenture to be incurred;
(A5) 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 such lease, license or other contractasset;
(B6) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary obligations applicable to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business business, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions restrict the transfer of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredpurchased or leased;
(vi7) any restriction with respect to agreement for the sale or other disposition of 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 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);
(vii8) 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 are 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, Cash Equivalents, marketable securities, or other deposits or net worth;
(12) agreements 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 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 Unrestricted Subsidiary is redesignated as a Restricted Subsidiary; provided that such encumbrance or restriction is not applicable to any Person, or to 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;
(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 agreements covered by clauses (1) or (2) of this Section 3.4(b);
(17) restrictions on cash or other deposits or net worth, which encumbrances or restrictions are imposed pursuant to any agreement referred to by customers or suppliers or required by insurance, surety or bonding companies, in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements each case, under contracts entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(18) 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 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 similar agreements applicable to joint ventures entered into the ordinary course of business;
(22) [Reserved];
(23) 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 property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or any Restricted Subsidiary or (y) materially affect the Issuer’s ability to make future principal or interest payments on the Notes, in each case, as determined in good faith by the Issuer; and
(ix24) 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 (20) through (23) of this Section 3.4(b); provided that such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is not materially more restrictive, as determined in good faith by a responsible financial or accounting officer of the 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 restrictions arising or existing by reason of applicable law or any applicable rule, regulation or orderrefinancing.
Appears in 1 contract
Sources: Indenture (MICROSTRATEGY Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any other Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Subsidiary, (b) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower Company or any other Restricted Subsidiary. The preceding provisions will not prohibit, except:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this AgreementIssue Date, including, without limitation, including the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateFacility;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i1) or (ii2) of this paragraph covenant or this clause (iii3) or contained in any amendment to an agreement referred to in clause (i1) or (ii2) of this paragraph covenant or this clause (iii3); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable in any material respect to the Lenders Noteholders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(iv4) any such encumbrance or restriction consisting of customary non- assignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased hereunder;
(5) in the case of clause (c) of the first paragraph of this Section 9.05above, 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) restrictions contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements; orand
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi6) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
Appears in 1 contract
Sources: Indenture (Applied Power Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary (other than a Subsidiary Guarantor) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than a Subsidiary Guarantor) to:
(a1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
(b2) make any loans or advances to the Borrower Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
(c3) sell, lease or transfer any of its assets or property or assets to the Borrower Company or any Restricted Subsidiary. The preceding provisions will Subsidiary (it being understood that such transfers shall not prohibitinclude any type of transfer described in clause (1) or (2) above).
(b) Section 4.08(a) shall not apply to any encumbrances or restrictions existing under or by reason of:
(i1) contractual encumbrances or restrictions of the Company or any encumbrance or restriction pursuant to an agreement of its Restricted Subsidiaries in effect at or entered into on the date of this AgreementIssue Date, including, without limitation, pursuant to the First Lien Senior Credit AgreementsFacility, the indenture governing Ex-Im Credit Facility, the Second Lien Existing Notes, the Security Documents, the Collateral Trust Agreement, the Intercreditor Agreement, related Hedging Obligations and Indebtedness permitted pursuant to clause (3) of Section 4.09(b);
(2) this Indenture, the Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateSubsidiary Guarantees;
(ii3) 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 with respect to a Restricted Subsidiary pursuant to an agreement relating is not applicable to any Capital Stock Person, or Indebtedness Incurred by a Restricted Subsidiary on the assets or before the date on which the Restricted Subsidiary was acquired by the Borrower (property of any Person, other than Capital Stock or Indebtedness Incurred as consideration inthe Person and its Subsidiaries, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower Person and its Subsidiaries, so acquired or any other Restricted Subsidiary other than the designated (including after-acquired assets and property so acquiredproperty);
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv4) in the case of clause (c3) of Section 4.08(a), Permitted Liens or Liens otherwise permitted to be Incurred under the first paragraph provisions of this Section 9.05, any encumbrance 4.12 that limit the right of the debtor to dispose of assets 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 contractLiens;
(B5) contained in mortgagespurchase money obligations, pledges mortgage financings, Capitalized Lease Obligations and similar obligations or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (c3) of Section 4.08(a) with respect to the first paragraph of this Section 9.05 on the assets or property so 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);
(vi6) any restriction encumbrances or restrictions contained in agreements for the sale, transfer or other disposition of assets or property, including without limitation customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Company pursuant to an agreement that has been entered into for the direct sale, transfer or indirect sale or other disposition 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;
(vii7) customary encumbrances restrictions on cash, Cash Equivalents or restrictions other deposits or net worth imposed pursuant to any agreement referred to by customers, suppliers or landlords under contracts entered into in the definition ordinary course of “Permitted Business Investmentbusiness or as required by insurance surety or bonding companies;”
(viii) net worth 8) any provisions in leases joint venture agreements, stockholders agreements, partnership agreements, LLC agreements and other similar agreements, which (x) are customary or (y) do not adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due (as determined by the Company in good faith);
(9) any provisions in leases, subleases, licenses, sublicenses, asset sale agreements, sale/leaseback agreements or stock sale agreements and other agreements entered into by the Borrower Company or any Restricted Subsidiary that (x) are customary and entered into in the ordinary course of business; andbusiness 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);
(ix10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or any license, permit or other authorization issued by any governmental or regulatory authority;
(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 Debt Facilities or 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 make payments of principal or interest payments on the Notes when due (as determined by the Company in good faith); or
(13) any encumbrances or 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 in the immediately preceding clauses (1) through (12) of this Section 4.08(b); provided, however, that the encumbrances or restrictions contained in such amendment, restatement, modification, renewal, increase, supplement, extension, refunding, replacement or refinancing are, in the good faith judgment of the Company, 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 refinancing.
Appears in 1 contract
Sources: Indenture (Viasat Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
(b2) make any loans or advances to the Borrower Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
(c3) transfer any of its property or assets to the Borrower Company or any Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The provisions of the preceding provisions paragraph will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this AgreementIndenture, including, without limitation, the First Lien Credit Agreementsthis Indenture (which exception shall also apply to Additional Securities, if any), the indenture governing Securities, the Second Lien Notes Exchange Securities, the Subsidiary Guarantees and the supplemental indentures governing the Existing Notes and the New Senior Notes Credit Facility in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the such Restricted Subsidiary was acquired by the Borrower Company or a Restricted Subsidiary (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of the transaction or transactionstransaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Borrower Company or any other Restricted Subsidiary other than the assets and property so acquiredacquired and property acquired by such Restricted Subsidiary after its date of acquisition;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a an amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement agreement, amendment, restatement, modification, renewal, increase, refunding, replacement or refinancing are no not materially less favorable in any material respect favorable, taken as a whole, to the Lenders 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 date of this Agreement Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c3) of the first paragraph of this Section 9.053.4, any Permitted Lien or 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 Indenture securing Indebtedness of the Borrower Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(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;
(v) (Aa) purchase money obligations for property acquired in the ordinary course of business and business, (Bb) Capital Capitalized Lease Obligations permitted under this AgreementIndenture, (c) industrial revenue bonds or (d) operating leases, in each case, that impose encumbrances or restrictions of the nature described in clause (c3) of the first paragraph of this Section 9.05 3.4 on the property so acquired;
(vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower Company or any Restricted Subsidiary in the ordinary course of business; and;
(viii) encumbrances or restrictions contained in indentures or debt instruments or other debt arrangements Incurred by (x) Subsidiary Guarantors in accordance with Section 3.2 and (y) Restricted Subsidiaries in accordance with the first paragraph of Section 3.2, that in each case, are not more restrictive, taken as a whole , than those applicable to the Company in the Senior Credit Facility (which results in encumbrances or restrictions comparable to those applicable to the Company at a Subsidiary Guarantor or Restricted Subsidiary level, as applicable);
(ix) encumbrances or restrictions with respect to Restricted Subsidiaries that are not Subsidiary Guarantors that are Incurred subsequent to the Issue Date pursuant to clauses (6) and (13) of the second paragraph of Section 3.2; provided that after giving effect to such Incurrence of Indebtedness, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Coverage Ratio test set forth in the first paragraph of Section 3.2;
(x) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xi) encumbrances or restrictions existing under or by reason of provisions in joint venture (other than Restricted Subsidiaries) or similar agreements required in connection with the entering into of such transaction;
(xii) customary restrictions imposed on the transfer and assignment of intellectual property; and
(xiii) any Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to the assets that are the subject of the Qualified Receivables Transaction.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any of its Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Subsidiaries;
(b2) make any loans or advances to the Borrower Company or any of its Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Subsidiaries; or
(c3) transfer any of its property or assets to the Borrower Company or any of its Restricted Subsidiary. The preceding provisions will not prohibitSubsidiaries, except:
(ia) any encumbrance or restriction pursuant to applicable law or an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateClosing Date;
(iib) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iiic) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (ia) or (iib) of this paragraph Section 4.05 or this clause (iiic) or contained in any amendment to an agreement referred to in clause (ia) or (iib) of this paragraph Section 4.05 or this clause (iiic); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such Refinancing agreement or amendment are no less favorable in any material respect to the Lenders Securityholders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(ivd) in the case of clause (c) of the first paragraph of this Section 9.053), 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;; or
(Bii) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(ve) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) any restriction with respect to a Restricted Subsidiary (or Subsidiary, any of its property or assets) restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition 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;
(viif) customary encumbrances any encumbrance or restrictions imposed pursuant restriction relating to any agreement referred to Purchase Money Indebtedness or Capitalized Lease Obligations for property acquired in the definition ordinary course of “Permitted Business Investmentbusiness that imposes restrictions on the ability of the Company or a Restricted Subsidiary to sell, lease or transfer the acquired property to the Company or its Restricted Subsidiaries;”
(viiig) net worth provisions in leases and restrictions on cash or other agreements deposits imposed by customers under contracts entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ixh) encumbrances any encumbrance or restrictions arising or existing by reason restriction contained in joint venture agreements and other similar agreements entered into in the ordinary course of applicable law or any applicable rule, regulation or orderbusiness and customary for such types of agreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiary to, Subsidiaries to create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) pay dividends or dividends, make any other distributions on its Capital Stock or pay any Indebtedness or other obligations obligation owed to the Borrower Company or any of its Restricted Subsidiary (Subsidiaries; provided, that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being common stock shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictions)make distributions on Capital Stock;
(b) make any loans or advances to the Borrower Company or any of its Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Subsidiaries; or
(c) sell, lease or transfer any of its property or assets to the Borrower Company or any of its Restricted Subsidiary. The preceding provisions will not prohibitSubsidiaries; except (in each case) for such encumbrances or restrictions existing under or by reason of:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this AgreementIssue Date, including, without limitation, including those arising under or in connection with the First Lien Senior Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateFacility;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before prior to the date on which the that Restricted Subsidiary was acquired by the Borrower (Company or any of its Restricted Subsidiaries, 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 that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower Company or any other of its Restricted Subsidiary other than the assets and property so acquiredSubsidiaries;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause clauses (i1) or (ii2) of this paragraph or this clause (iii3) or contained in any amendment, supplement or modification, including an amendment and restatement, to an agreement referred to in clause clauses (i1) or (ii2) of this paragraph or this clause (iii3); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment taken as a whole are no less favorable to the Holders in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred prior to in clauses (i) such amendment, supplement, modification or (ii) of this paragraph on refinancing, as the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablecase may be;
(iv4) in the case of clause (c) of the first paragraph of this Section 9.05, 4.5(c) 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 license, or similar contract, or the assignment or transfer of any such lease, license or other contract;,
(B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any of its Restricted Subsidiaries not otherwise prohibited by this Indenture, or
(C) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict the transfer of the property subject to such mortgages, pledges or other those security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v5) any restriction imposed by applicable law, rule, regulation or order;
(A6) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of that Restricted Subsidiary pending the closing of the sale or disposition;
(7) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or certain restrictions of the nature described in this clause (c) of the first paragraph of this Section 9.05 4.5 on the property so acquired;
(vi8) provisions limiting the disposition or distribution of assets or property or transfer of Capital Stock in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, and other similar agreements that are otherwise entered into in accordance with the terms of this Indenture and (A) in the ordinary course of business or (B) with the approval of the Board of Directors of the Company, which limitation is applicable only to the assets, property or Capital Stock that are the subject of such agreements;
(9) encumbrances on property that exist at the time the property was acquired by the Company or a Restricted Subsidiary;
(10) Hedging Obligations Incurred from time to time;
(11) any restriction with respect Permitted Investment;
(12) this Indenture, the Securities and the Subsidiary Guarantees;
(13) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings amendments or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (12) of this Section 4.5(c); provided that such amendments or refinancings are not materially more restrictive, taken as a Restricted Subsidiary whole, than such encumbrances and restrictions prior to such amendment or refinancing; and
(14) pursuant to other Indebtedness, Disqualified Capital Stock or Preferred Stock of the Company or any of its property or assets) imposed Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into for subsequent to the direct Issue Date in accordance with Section 4.3 hereof; provided that such encumbrances and restrictions contained in any agreement or indirect sale or disposition of all or substantially all instrument will not materially affect the Capital Stock or assets of such Restricted Subsidiary Company’s ability to make anticipated principal and interest payments on the Securities (or as determined by the property or assets that are subject to such restriction) pending the closing of such sale or disposition;Company in good faith).
(viid) customary encumbrances or restrictions imposed pursuant to any agreement referred to Nothing contained in this Section 4.5 shall prevent the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower Company or any of its Restricted Subsidiary Subsidiaries from creating, incurring, assuming or suffering to exist any Lien created, incurred, assumed or suffered to exist in accordance with the ordinary course other terms of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or orderthis Indenture.
Appears in 1 contract
Sources: Indenture (Doane Pet Care Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary Company, (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(bii) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(ciii) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitCompany, except:
(iA) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this AgreementIssue Date, including, without limitation, including the First Lien Credit Agreements, the indenture governing the Second Lien Notes Agreement and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateNote Agreement;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary assumed pursuant to an agreement effecting a refundingconstituting Bank Indebtedness, replacement Senior Note Indebtedness or refinancing of Refinancing Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of compliance with this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii)Indenture; PROVIDED, including successive refundingsHOWEVER, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such Senior Bank Documents, Senior Note Documents or any other agreement providing for Refinancing Indebtedness are no less favorable to the Securityholders than encumbrances and restrictions contained in the agreements referred relating to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableIndebtedness being replaced;
(ivD) any encumbrance or restriction assumed pursuant to an agreement relating to an acquisition of property, so long as the encumbrances or restrictions in any such agreement relate solely to the property so acquired (and are not or were not created in anticipation of or in connection with the acquisition thereof);
(E) in the case of clause (c) of the first paragraph of this Section 9.05iii), 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 license, conveyance or contract or similar contractproperty asset, or the assignment or transfer of any such lease, license or other contract;
(B2) contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict the transfer of or the property subject to such mortgages, pledges security agreements or other security agreements; or
mortgages or (C3) pursuant arising or agreed to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any of its Subsidiaries in any manner material to the Company or any such Restricted Subsidiary;
(BF) Capital Lease Obligations restrictions on the transfer of assets subject to any Lien permitted under this Agreement, in each case, that impose encumbrances or restrictions Indenture imposed by the holder of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;such Lien; and
(viG) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
Appears in 1 contract
Sources: Indenture (Ta Operating Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary (other than a Subsidiary Guarantor) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than a Subsidiary Guarantor) to:
(a1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
(b2) make any loans or advances to the Borrower Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
(c3) sell, lease or transfer any of its assets or property or assets to the Borrower Company or any Restricted Subsidiary. The preceding provisions will Subsidiary (it being understood that such transfers shall not prohibitinclude any type of transfer described in clause (1) or (2) above).
(b) Section 4.08(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i1) contractual encumbrances or restrictions of the Company or any encumbrance or restriction pursuant to an agreement of its Restricted Subsidiaries in effect at or entered into on the date of this AgreementIssue Date, including, without limitation, pursuant to the First Lien Senior Credit AgreementsFacility, the indenture governing Ex-Im Credit Facility, the Second Lien Existing Notes due 2025, the Existing Notes due 2027, the Existing Notes due 2028, the Term Loan Facilities, related Hedging Obligations and Indebtedness permitted pursuant to Section 4.09(b)(3);
(2) this Indenture, the Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateSubsidiary Guarantees;
(ii3) 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 with respect to a Restricted Subsidiary pursuant to an agreement relating is not applicable to any Capital Stock Person, or Indebtedness Incurred by a Restricted Subsidiary on the assets or before the date on which the Restricted Subsidiary was acquired by the Borrower (property of any Person, other than Capital Stock or Indebtedness Incurred as consideration inthe Person and its Subsidiaries, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower Person and its Subsidiaries, so acquired or any other Restricted Subsidiary other than the designated (including after-acquired assets and property so acquiredproperty);
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv4) in the case of clause (c) Section 4.08(a)(3), Permitted Liens or Liens otherwise permitted to be Incurred under the provisions of Section 4.12 that limit the right of the first paragraph debtor to dispose of this Section 9.05, any encumbrance assets 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 contractLiens;
(B5) contained in mortgagespurchase money obligations, pledges mortgage financings, Capitalized Lease Obligations and similar obligations or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause Section 4.08(a)(3) with respect to the assets or property purchased, acquired, financed, designed, developed, leased, constructed, repaired, replaced, maintained, installed, improved or insured in connection therewith or thereby (c) of the first paragraph of this Section 9.05 on the property so acquiredincluding any proceeds thereof, accessions thereto and any upgrades or improvements thereto);
(vi6) any restriction encumbrances or restrictions contained in agreements for the sale, transfer or other disposition of assets or property, including without limitation customary restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed the Company pursuant to an agreement that has been entered into for the direct sale, transfer or indirect sale or other disposition 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;
(vii7) customary encumbrances restrictions on cash, Cash Equivalents or restrictions other deposits or net worth imposed pursuant to any agreement referred to by customers, suppliers or landlords under contracts entered into in the definition ordinary course of “Permitted Business Investmentbusiness or as required by insurance surety or bonding companies;”
(viii) net worth 8) any provisions in leases joint venture agreements, stockholders agreements, partnership agreements, LLC agreements and other similar agreements, which (x) are customary or (y) do not adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due (as determined by the Company in good faith);
(9) any provisions in leases, subleases, licenses, sublicenses, asset sale agreements, sale/leaseback agreements or stock sale agreements and other agreements entered into by the Borrower Company or any Restricted Subsidiary that (x) are customary and entered into in the ordinary course of business; andbusiness 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);
(ix10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or any license, permit or other authorization issued by any governmental or regulatory authority;
(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 Debt Facilities or other Indebtedness Incurred by any Foreign Subsidiary permitted to be incurred in accordance with Section 4.09;
(13) contractual encumbrances or restrictions contained in any Secured Indebtedness or Debt Facilities relating thereto Incurred by the Company or any Restricted Subsidiary in accordance with Section 4.09 and Section 4.12 that limit the right of an obligor to dispose of the assets securing such Indebtedness;
(14) contractual encumbrances or restrictions arising under any agreement or instrument which, if it relates to Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred in accordance with Section 4.09 if such encumbrances and restrictions contained in any agreement or instrument, (x) are not materially more restrictive, when taken as a whole, than those applicable in the Senior Credit Facility on the Issue Date (as determined by the Company in good faith), or (y) either (A) 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), or (B) such encumbrances or restrictions apply only during the continuance of a default relating to such agreement or instrument; or
(15) any encumbrances or 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 in the immediately preceding clauses (1) through (12) of this Section 4.08(b); provided, however, that the encumbrances or restrictions contained in such amendment, restatement, modification, renewal, increase, supplement, extension, refunding, replacement or refinancing are, in the good faith judgment of the Company, 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 refinancing.
Appears in 1 contract
Sources: Indenture (Viasat Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Parent shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (ax) pay dividends or make any other distributions on its Capital Stock to Parent or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Parent or any Restricted Subsidiary Subsidiary, (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(by) make any loans or advances to the Borrower Parent or any Restricted Subsidiary or (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(cz) transfer any of its property or assets Property to the Borrower Parent or any Restricted Subsidiary. The preceding provisions will not prohibit, except:
(i1) with respect to clauses (x), (y) and (z),
(A) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this AgreementIssue Date or applicable law, includingrule, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateregulation or order;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactions) Parent and outstanding on such date; provided that ;
(C) any such encumbrance or restriction shall not extend pursuant to applicable law and other customary conditions and restrictions contained in any assets agreement, document or property of instrument relating to the Borrower formation, operation and regulatory requirements or any other Restricted Subsidiary other than the assets and property so acquiredlimitations related to a Captive Insurance Subsidiary;
(iiiD) contracts or agreements for the sale of Property, including any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement effecting a refundingentered 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, replacement asset sale agreements, stock sale agreements and other similar agreements, which limitation or refinancing 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 an agreement referred Section 4.03 and Section 4.09 that limit the right of the debtor to in clause 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 this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any that is not a Subsidiary Guarantor or a Foreign Subsidiary so long as such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in any agreement or instrument will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined in good faith by the Issuer) or any Guarantor’s ability to satisfy its obligations under its Notes Guarantee (as determined in good faith by the Issuer), provided that in the case of each of clauses (i) and (ii), such agreements Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.03; and
(L) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (iA) through (K) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or (ii) refinancings are, in the good faith judgment of this paragraph on Parent, not materially more restrictive with respect to such dividend and other payment restrictions than those contained in the date of this Agreement dividend or the date other payment restrictions prior to such Restricted Subsidiary became a Restricted Subsidiaryamendment, whichever is applicable;modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(iv2) in the case of with respect to clause (cz) of the first paragraph of this Section 9.05, any encumbrance or restriction:only,
(A) any encumbrance or restriction 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;contracts; and
(B) (i) purchase money obligations for Property acquired and (ii) any encumbrance or restriction contained in mortgagesCapital Lease Obligations, pledges or other any agreement governing Purchase Money Indebtedness, security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property Property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this AgreementObligations, in each casePurchase Money Indebtedness, that impose encumbrances security agreements or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or ordermortgages.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower (a) Following the Completion Date, the Issuer will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Issuer or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary Subsidiary;
(2) make any loans or advances to the Issuer or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the 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 common stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(by) make any loans or advances to the Borrower or any Restricted Subsidiary (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 being shall not be deemed not to constitute such an encumbrance or restriction); or.
(cb) transfer any The provisions of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions Section 4.07(a) hereof will not prohibit:
(i1) 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 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 Completion Date (as determined in good faith by the Issuer);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of this Indenture, 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 Credit Facility and the guarantees thereof, the Intercreditor Agreement (or any additional intercreditor agreement), the Notes Escrow Agreement, the Senior Secured Notes Escrow Agreement, the Holdco Notes Escrow Agreement, and the Senior Secured Notes Security Documents;
(4) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date instrument of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii) any encumbrance a Person or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by of a Restricted Subsidiary Person, entered into on or before the date on which the Restricted Subsidiary (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 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 Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or in contemplation of was merged, consolidated or otherwise combined with or into the transaction Issuer or transactionsany Restricted Subsidiary) and outstanding on such date; provided that 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 encumbrance Subsidiary shall be deemed acquired or restriction shall not extend to any assets or property of assumed by the Borrower Issuer or any other Restricted Subsidiary other than when such Person becomes the assets and property so acquiredSuccessor Company;
(iii5) 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) 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 clause (iSection 4.07(b)(1), Section 4.07(b)(3) or (iiSection 4.07(b)(4) of this paragraph hereof or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iiiSection 4.07(b)(5); provided, including successive refundingshowever, replacements or refinancings; provided 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 such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableIssuer);
(iv6) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements; 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;
(v7) (A) purchase money obligations for property acquired in the ordinary course of business any encumbrance or restriction pursuant to Purchase Money Obligations and (B) Capital Capitalized Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredacquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) 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;
(vii9) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases leases, licenses, joint venture agreements and other similar agreements and instruments entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and;
(ix10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, governmental license or order, or required by any regulatory authority 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 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 Holders of the Notes than (i) the encumbrances and restrictions contained in the Existing Credit Facility or the New Credit Facility on the 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 Issuer) and where, in the case of clause (ii), the Issuer determines at the time of issuance of such Indebtedness that such encumbrances or restrictions (x) will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes as and when they become due or (y) such encumbrances and restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness;
(14) any encumbrance or restrictions arising in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing that, in the good faith determination of an Officer or the Board of Directors of the Issuer, are necessary or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06 hereof.
Appears in 1 contract
Sources: Indenture (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Subsidiary;
(b2) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Subsidiary; or
(c3) transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(ia) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, hereof (including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such datepursuant hereto);
(iib) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of the transaction or transactionsthereof) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iiic) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (ia) or (iib) of this paragraph or this clause (iiic) or contained in any amendment to an agreement referred to in clause (ia) or (iib) of this paragraph or this clause (iiic); PROVIDED, including successive refundingsHOWEVER, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or amendment are no less favorable in any material respect to the Lenders more restrictive than the those encumbrances and restrictions contained in such agreements referred to in clauses (ia) or and (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiaryb), whichever is applicableabove;
(ivd) in the case of clause (c) of the first paragraph of this Section 9.053), 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 securing Indebtedness of the Borrower Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; 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;
(v) (Ae) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 3), above, on the property so acquired;
(vif) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ixg) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
Appears in 1 contract
Sources: Indenture (Preem Holdings Ab Publ)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Company, (b) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitCompany, except:
(i1) any encumbrance or restriction existing on the Issue Date, including pursuant to an agreement in effect at or entered into on the date of this Credit Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person existing on or before prior to the date on which the Restricted Subsidiary such Person was acquired by the Borrower Company or any Restricted Subsidiary (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 Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of the transaction or transactionsany Restricted Subsidiary) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refundingthat extends, replacement renews, refinances or refinancing of Indebtedness Incurred pursuant to an agreement replaces any encumbrances or restrictions referred to in clause (i1) or (ii2) of this paragraph covenant or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii3); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to in such Restricted Subsidiary contained in any such agreement extensions, renewals, refinancings or replacements are no less favorable in any material respect favorable, taken as a whole, to the Lenders Noteholders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) being extended, renewed, refinanced or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablereplaced;
(iv4) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 of all assets permitted by Section 4.06; provided, however, that such encumbrance or substantially all restriction applies only to the Capital Stock or assets that are the subject of such Restricted Subsidiary agreement;
(5) provisions in agreements for Permitted Joint Ventures with respect to the disposition or distribution of assets or property of such Permitted Joint Venture;
(6) 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;
(7) any encumbrance or assets that are restriction existing under or by reason of applicable law;
(8) 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 restriction) pending the closing of such sale security agreements or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of businessmortgages; and
(ix9) encumbrances or restrictions arising or existing by reason any Liens securing Indebtedness otherwise permitted to be Incurred under Section 4.11 that limit the right of applicable law or any applicable rule, regulation or orderthe debtor to dispose of the assets subject to such Liens.
Appears in 1 contract
Sources: Indenture (Wolverine Tube Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(a1) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Company or any other Restricted Subsidiary,
(2) pay any Indebtedness Debt or other obligations obligation owed to the Borrower Company or any other Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);Subsidiary,
(b3) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); Subsidiary, or
(c4) transfer any of its property or assets Property to the Borrower Company or any other Restricted Subsidiary. .
(b) The preceding provisions foregoing limitations will not prohibitapply:
(i1) any encumbrance or restriction pursuant with respect to an agreement in effect at or entered into on the date of this AgreementSection 4.13(a)(1)(2)(3) and (4), including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes to restrictions which are:
(A) in effect on the Issue Date (as such daterestrictions may be amended from time to time; provided that any such amendment is not materially more restrictive as to such Restricted Subsidiary);
(iiB) any encumbrance imposed by the Notes or restriction this Indenture, or by indentures governing other Debt the Company or a Subsidiary Guarantor Incurs (and, if such Debt is Guaranteed, by the guarantors of such Debt) ranking on a parity with the Notes or the Subsidiary Guarantees; provided that the restrictions 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 hereof pursuant to Section 4.09(b)(1);
(D) relating to Debt of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by existing at the time it became a Restricted Subsidiary on if such restriction was not created in connection with or before the date on which the Restricted Subsidiary was acquired by the Borrower (other than Capital Stock 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other a Restricted Subsidiary other than the assets and property so acquired(as such restrictions may be amended from time to time in a manner not materially more restrictive as to such Restricted Subsidiary);
(iiiE) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing that result from the Refinancing of Indebtedness Debt Incurred pursuant to an agreement referred to in clause (iSection 4.13(b)(1)(A),(B) or (iiD) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancingsabove; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are restriction is no less favorable in any material respect to the Lenders Holders of the Notes than those restrictions under the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on agreement evidencing the date of this Agreement or the date such Restricted Subsidiary became Debt so Refinanced when taken as a Restricted Subsidiary, whichever is applicablewhole;
(ivF) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license restrictions on cash or other contract;
(B) contained in mortgages, pledges deposits or net worth imposed by leases or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired entered into in the ordinary course of business and business;
(BG) Capital Lease Obligations permitted under this Agreement, in each case, that impose 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 nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredCompany or any Restricted Subsidiary by such governmental authority;
(viH) 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 transfer, disposition or distribution of Property pending the closing of such sale, including any 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 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;
(viiL) restrictions on Debt Incurred by Non-U.S. Subsidiaries; provided that such restrictions are then customary encumbrances or restrictions imposed pursuant to any agreement referred to for Debt of such type Incurred in the definition of “Permitted Business Investment;”such jurisdiction; or
(viiiM) net worth provisions in leases and other agreements entered into by restrictions resulting from any U.S. or foreign law, rule, regulation or order applicable to the Borrower 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 other agreements that restrict assignment of such agreements 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; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or orderbusiness with respect only to the Property the subject thereof.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Company, (b) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitCompany, except:
(i) any encumbrance or restriction pursuant to an agreement agreement, including the Credit Agreement and the Note Indenture, in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateIssue Date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company or any of its Restricted Subsidiaries (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation any of the transaction or transactionsits Restricted Subsidiaries) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement (A) evidencing Indebtedness Incurred without violation of this Indenture or (B) effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph Section 4.05 or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph Section 4.05 or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided 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 amendment are no less favorable more restrictive in any material respect to respect, as determined in good faith by the Lenders Board of Directors, than the encumbrances and restrictions contained in such agreements referred with respect to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a contained in agreements of such Restricted SubsidiarySubsidiary in effect at, whichever is applicableor entered into on, the Issue Date;
(iv) any such encumbrance or restriction consisting of customary non assignment or subletting provisions contained in leases and other contracts entered into in the ordinary course of business and consistent with past practices;
(v) in the case of clause (c) of the first paragraph of this Section 9.05above, any encumbrance or restriction:
(A) that restricts restrictions contained in a customary manner the sublettingsecurity agreements, assignment or transfer of any property or asset that is subject to a lease, license mortgages 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 documents securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower , mortgages or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredsimilar documents;
(vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances any encumbrance or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”restriction arising under applicable law; and
(viii) net worth provisions in leases and any encumbrance or restriction consisting of any restriction on the sale or other agreements entered into by the Borrower disposition of assets or any Restricted Subsidiary in the ordinary course property securing Indebtedness as a result of business; and
(ix) encumbrances a Lien permitted to be Incurred under this Indenture on such asset or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or orderproperty.
Appears in 1 contract
Sources: Indenture (Mediq Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any a Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Subsidiary, (b) make any loans or advances to the Borrower Company or any a Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower Company or any a Restricted Subsidiary. The preceding provisions will not prohibit, except:
(i1) 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 date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateIssue Date;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iSection 4.05(1)(A) or (ii) of this paragraph or this clause (iiiC) or contained in any amendment to an agreement referred to in clause Section 4.05 (i1)(A) or (ii) of this paragraph or this clause (iiiC); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable in any material respect not materially more restrictive to the Lenders Holders, taken as a whole, than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(ivD) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 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;
(viiE) customary encumbrances any encumbrance or restrictions imposed restriction pursuant to the terms of any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower a Receivables Subsidiary in connection with any Qualified Receivables Transaction; provided, however, that such encumbrance or restriction applies only to a Receivables Subsidiary;
(F) any Restricted Subsidiary encumbrance or restriction consisting of requirements with respect to cash or other 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;
(G) 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
(ixH) any encumbrance or restriction existing under, by reason of or with respect to credit facilities entered into by Foreign Subsidiaries, provided that such encumbrances or restrictions arising are effective only after the occurrence and during the continuance of a material default under, or existing 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 reason the Company or a Restricted Subsidiary in effect at the time of applicable law such acquisition, so long as such restriction or any applicable rule, regulation or orderencumbrance 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. The Borrower Parent will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Parent or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Subsidiary;
(b) make any loans or advances to the Borrower Parent or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Subsidiary; or
(c) transfer any of its property or assets to the Borrower Parent or any Restricted Subsidiary. The preceding provisions will not prohibit, except:
(i) any encumbrance or restriction pursuant to applicable law or an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateClosing Date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Parent (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 Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Borrower or in contemplation of the transaction or transactionsParent) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph Section 4.05(c) or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph Section 4.05(c) or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable in any material respect to the Lenders Holders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(iv) in the case of this clause (c) of the first paragraph of this Section 9.05), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;or
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;and
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) any restriction with respect to a Restricted Subsidiary (or Subsidiary, any of its property or assets) restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
Appears in 1 contract
Sources: Indenture (Kansas City Southern)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will On and after the Escrow Release Date, the Issuer shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Subsidiary, (b) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit, 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 date of this Agreement, including, without limitationEscrow Release Date (including the Credit Agreement in effect on the Escrow Release Date, the First Lien Credit AgreementsAdditional Bridge Facility in effect on the Escrow Release Date, the indenture governing the Second Lien 2023 Notes and the supplemental indentures governing related guarantees, the Existing 2023 Notes Indenture, this Indenture, the Notes and the New Senior 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 effect on such date;the documentation entered into in connection with any future debt securities issued or guaranteed by the Issuer;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a contractual obligation binding on such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Issuer (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsIssuer) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;date;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iSections 4.05(i)(A) or (iiB) of this paragraph or this clause (iiiC) or contained in any amendment to an agreement referred to in clause (iSection 4.05(i)(A) or (iiB) of this paragraph or this clause (iii)C); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable in any material respect to the Lenders Issuer or any Restricted Subsidiary (as reasonably determined by the Issuer in good faith) than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;predecessor agreements;
(ivD) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) any 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 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;disposition;
(viiE) 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 imposed 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 agreement 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 definition contracts, instruments or obligations referred to in clauses (A) through (N) of “Permitted Business Investment;”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,
(viiiii) net worth 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 by the Borrower or any Restricted Subsidiary in the ordinary course of business; and.
(ixiii) encumbrances For purposes of determining compliance with this Section 4.05, (x) the priority of any Preferred Stock in receiving dividends or restrictions arising liquidating distributions prior to dividends or existing liquidating distributions being paid on other Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (y) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary to other Indebtedness Incurred by reason of applicable law the Issuer or any applicable rule, regulation such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or orderadvances.
Appears in 1 contract
Sources: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock held by the Company 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 Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the 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 common stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(by) make any loans or advances to the Borrower 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 being shall not be deemed not to constitute such an encumbrance or restriction); or.
(cb) transfer any The provisions of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions Section 4.05
(a) will not prohibit:
(i1) any encumbrance or restriction pursuant to (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 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 Security Documents or Additional Intercreditor Agreement;
(2) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date instrument of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii) any encumbrance a Person or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by of a Restricted Subsidiary Person, entered into on or before the date on which the Restricted Subsidiary such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary entered into or in contemplation of the transaction or transactionsconnection with such transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii3) 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 refinances, an agreement or instrument referred to in clause (1) or (2) of this Section 4.05(b) or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clause (i1) or (ii2) of this paragraph Section 4.05(b) or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii3); provided, including successive refundingshowever, replacements or refinancings; provided 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 such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableBoard of Directors of the Issuer);
(iv4) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges 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 not prohibited by this 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
(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;
(v5) (Ax) purchase money obligations for property acquired in the ordinary course of business any encumbrance or restriction pursuant to Purchase Money Obligations and (B) Capital Capitalized Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredacquired or (y) any encumbrance or restriction pursuant to a joint venture, co-investment or similar agreements (and any agreements ancillary or consequential thereto) that 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);
(vi6) 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;
(vii7) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases leases, licenses, joint venture agreements, co-investment and other similar or related agreements and instruments, in each case, entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; andbusiness 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;
(ix) 8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers 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;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.06 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in this Indenture, the New Notes Indenture, the RCF Facility Agreement as of the Issue Date, the Piraeus Term Loan Facility Agreement as of the Issue Date, the Intercreditor Agreement and any Additional Intercreditor Agreement, together with the security documents associated therewith as in effect on the Issue Date after giving pro forma effect to the Transactions; or
(12) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.09.
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 Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) 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 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);
(by) make any loans or advances to the Borrower or any Restricted Subsidiary (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 being Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, shall not be deemed not to constitute such an encumbrance or restriction); or.
(cb) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions 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 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 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 in effect at or entered into on the date instrument of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii) any encumbrance a Person or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by of a Restricted Subsidiary Person, entered into on or before the date on which the Restricted Subsidiary (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 Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of was merged, consolidated or otherwise combined with or into the transaction Borrower or transactionsany Restricted Subsidiary) and outstanding on such date; provided that 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 encumbrance Subsidiary shall be deemed acquired or restriction shall not extend to any assets or property of assumed by the Borrower or any other Restricted Subsidiary other than when such Person becomes the assets and property so acquiredSuccessor Company;
(iii5) 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 to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (iSection 4.07(b)(1), Section 4.07(b)(3) or (iiSection 4.07(b)(4) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.Section
Appears in 1 contract
Sources: Credit Agreement (Altice USA, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Issuer shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Issuer or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Subsidiary, (b) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit, except:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Issue Date (including the Credit Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date);
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred or Capital Stock or Indebtedness Incurred issued by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Issuer or any Restricted Subsidiary (other than Indebtedness Incurred or Capital 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Issuer or in contemplation of the transaction or transactionsany Restricted Subsidiary) and outstanding on such date;
(3) any encumbrance or restriction existing under or by reason of Indebtedness or other contractual requirements of a Receivables Subsidiary or any Standard Securitization Undertaking, in each case in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Subsidiary and Receivables and Related Assets;
(4) any such encumbrance or restriction shall not extend to any assets arising by reason of applicable law, rule, regulation or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquiredorder;
(iii5) restrictions on cash or other deposits or net worth imposed by customers, suppliers or landlords under contracts entered into in the ordinary course of business;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 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;
(vii7) any encumbrance or restriction consisting of customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth nonassignment provisions in leases governing leasehold interests to the extent such provisions impose restrictions of the type described in clause (c) above on the lease or the property leased thereunder;
(8) Secured Indebtedness otherwise permitted to be Incurred under the terms of this Indenture that restricts the transfer of the assets securing such Indebtedness;
(9) Purchase Money Indebtedness Incurred in compliance with Section 4.03 hereof;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business that restrict the transfer of ownership interests in such joint venture or similar Person;
(11) 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;
(12) any encumbrance or restriction contained in any Indebtedness Incurred by the Borrower Issuer or any a Restricted Subsidiary subsequent to the Issue Date pursuant to Section 4.03(b)(5), (7), (12), (17), (19) or (22) hereof; and
(13) agreements governing other Indebtedness permitted to be Incurred under Section 4.03; provided that the restrictions therein will not materially adversely impact the Issuer’s ability to make required principal or interest payments on the Notes (as determined by the Issuer in good faith);
(14) Permitted Liens;
(15) any restriction on cash or other deposits or net worth imposed by customers, licensors or lessors or required by insurance, surety or bonding companies, in each case under contracts entered into in the ordinary course of business; and
(ix16) any encumbrances or restrictions arising of the type referred to in clauses (a), (b) and (c) above imposed by any amendments or existing by reason refinancings of applicable law the contracts, instruments or any applicable ruleobligations referred to in clauses (1) through (15) above; provided that such amendments or refinancings are, regulation in the good faith judgment of the Board of Directors of the Issuer, not materially more restrictive as a whole with respect to such dividend and other restrictions than those contained in the dividend or orderother restrictions prior to such amendment or refinancing.
Appears in 1 contract
Sources: Indenture (BOISE CASCADE Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Issuer shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any of its Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Subsidiaries;
(b) make any loans or advances to the Borrower Issuer or any of its Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Subsidiaries; or
(c) transfer any of its property or assets to the Borrower Issuer or any of its Restricted Subsidiary. The preceding provisions will not prohibitSubsidiaries, except:
(i) any encumbrance or restriction pursuant to applicable law or an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateClosing Date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Issuer (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 Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Borrower or in contemplation of the transaction or transactionsIssuer) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (ic)(i) or (iic)(ii) of this paragraph Section 4.05 or this clause (iii) or contained in any amendment to an agreement referred to in clause (ic)(i) or (iic)(ii) of this paragraph Section 4.05 or this clause (iii); PROVIDED, including successive refundingsHOWEVER, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such Refinancing agreement or amendment are no less favorable in any material respect to the Lenders Holders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(iv) in the case of clause (c) of the first paragraph of this Section 9.05), 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 such lease, license or other contract;; or
(B2) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) any restriction with respect to a Restricted Subsidiary (or Subsidiary, any of its property or assets) restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition 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;
(vi) any encumbrance or restriction relating to Purchase Money Indebtedness or Capitalized Lease Obligations for property acquired in the ordinary course of business that imposes restrictions on the ability of the Issuer or a Restricted Subsidiary to sell, lease or transfer the acquired property to the Issuer or its Restricted Subsidiaries;
(vii) customary encumbrances restrictions on cash or restrictions other deposits imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements by customers under contracts entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ixviii) encumbrances any encumbrance or restrictions arising or existing by reason restriction contained in joint venture agreements and other similar agreements entered into in the ordinary course of applicable law or any applicable rule, regulation or orderbusiness and customary for such types of agreements.
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 Subsidiary to, Subsidiaries to create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary of the Company to:
(a1) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries on its Capital Stock Stock, or pay any Indebtedness or other obligations owed to the Borrower Company or any of its Restricted Subsidiary (Subsidiaries; provided that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to the payment of dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being common stock shall not be deemed not to constitute such encumbrances or restrictions)be a restriction on the ability to make distributions on Capital Stock;
(b2) make any loans or advances to the Borrower Company or any of its Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Subsidiaries; or
(c3) transfer any of its property properties or assets to the Borrower Company or any of its Restricted Subsidiary. The preceding provisions Subsidiaries.
(b) However, the restrictions in Section 3.4(a) will not prohibitapply to encumbrances or restrictions existing under or by reason of:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture agreements governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes Indebtedness as in effect on such date;
(ii) the Issue Date and any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the Restricted Subsidiary was acquired by the Borrower (other than Capital Stock or Indebtedness Incurred as consideration inamendments, or to provide all or any portion of the funds utilized to consummaterestatements, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refundingmodifications, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii)renewals, including successive supplements, refundings, replacements or refinancingsrefinancings of those agreements; provided that the encumbrances and 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 Restricted Subsidiary dividend and other payment restrictions than those contained in those agreements on the Issue Date;
(2) this Indenture, the Notes (and any additional Notes), the Subsidiary Guarantees, the Collateral Agency Agreement and the Security Documents;
(3) any future Liens that may be permitted to be granted under, or incurred not in violation of, any other provisions of this Indenture;
(4) agreements governing other Indebtedness or Preferred Stock permitted to be incurred or issued under the provisions of Section 3.2 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are, in the good faith judgment of an officer of the Company not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(5) applicable law or any applicable rule, regulation, order, approval, license, permit or similar restriction;
(a) any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such agreement are no less favorable in any material respect encumbrance or restriction relates only to the Lenders property or assets so acquired and is not and was not created in anticipation of such acquisition, and (b) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions contained in any such agreements referred to amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in clauses (i) or (ii) the good faith judgment of this paragraph an officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiaryacquisition; provided further, whichever is applicable;
(iv) that, in the case of clause (c) of Indebtedness, such Indebtedness was permitted by the first paragraph terms of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject Indenture to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contractbe incurred;
(B7) contained customary non-assignment provisions in mortgagescontracts, pledges or other security agreements permitted under this Agreement securing Indebtedness agreements, licenses and leases entered into in the ordinary course of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiarybusiness;
(v) (A) 8) purchase money obligations obligations, security agreements or mortgage financings for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances restrictions on the property purchased or restrictions leased of the nature described in clause (c3) of the first paragraph of this Section 9.05 on the property so acquired3.4(a);
(vi9) 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 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;
(vii10) 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 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 imposed pursuant to any agreement referred to contained in, or in respect of, Hedging Obligations incurred in the definition ordinary course of “Permitted Business Investmentbusiness and permitted under this Indenture;”
(viii14) encumbrances or restrictions on cash, Cash Equivalents or other deposits or net worth provisions in imposed by customers or lessors under contracts or leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(15) any instrument governing Indebtedness or Capital Stock of a Foreign Subsidiary; provided that such Indebtedness or Capital was otherwise permitted by the terms of this Indenture to be incurred or issued; and
(ix16) encumbrances restrictions on property received in connection with a sale or restrictions arising or existing by reason issuance of applicable law or any applicable rule, regulation or orderEquity Interests in a Permitted Water Subsidiary that limit the use of such property in accordance with clause (12) of the definition of Asset Sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Company, (b) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitCompany, except:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into existing on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateIssue Date;
(ii2) any encumbrance or restriction contained in the Credit Agreement;
(3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary Person existing on or before prior to the date on which the Restricted Subsidiary such Person was acquired by the Borrower Company or any Restricted Subsidiary (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 Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of the transaction or transactionsany Restricted Subsidiary) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refundingthat extends, replacement renews, refinances or refinancing of Indebtedness Incurred pursuant to an agreement replaces any encumbrances or restrictions referred to in clause (i1), (2) or (ii3) of this paragraph Section 4.05 or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii4); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to in such Restricted Subsidiary contained in any such agreement extensions, renewals, refinancings or replacements are no less favorable in any material respect favorable, taken as a whole, to the Lenders Noteholders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) being extended, renewed, refinanced or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablereplaced;
(iv5) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 of all assets permitted by Section 4.06; provided, however, that such encumbrance or substantially all restriction applies only to the Capital Stock or assets that are the subject of such Restricted Subsidiary agreement;
(6) provisions in agreements for Permitted Joint Ventures with respect to the disposition or distribution of assets or property of such Permitted Joint Venture;
(7) 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;
(8) any encumbrance or assets that are restriction existing under or by reason of applicable law;
(9) 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 restriction) pending the closing of such sale security agreements or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of businessmortgages; and
(ix10) encumbrances or restrictions arising or existing by reason any Liens securing Indebtedness otherwise permitted to be Incurred under Section 4.11 that limit the right of applicable law or any applicable rule, regulation or orderthe debtor to dispose of the assets subject to such Liens.
Appears in 1 contract
Sources: Indenture (Wolverine Tube Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
(bii) make any loans or advances to the Borrower Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
(ciii) transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary. The preceding provisions Subsidiary (it being understood that such transfers shall not include any type of transfer described in Section 3.4(a)(i) and Section 3.4(a)(ii) above).
(b) Section 3.4(a) will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, Issue Date including, without limitation, the First Lien Credit Agreementsthis Indenture, the indenture governing Securities, the Second Lien Notes Exchange Notes, the Subsidiary Guarantees, and the supplemental indentures governing the Existing Notes Senior Credit Agreements (and the New Senior Notes related documentation) in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the such Restricted Subsidiary was acquired by the Borrower Company or a Restricted Subsidiary (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of the transaction or transactionstransaction) and outstanding on such date; provided date provided, that any such encumbrance or restriction shall not extend to any assets or property of the Borrower Company or any other Restricted Subsidiary other than the assets and property so acquiredacquired and that, in the case of Indebtedness, was permitted to be Incurred pursuant to this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iSection 3.4(b)(i) or (iiSection 3.4(b)(ii) of this paragraph or this clause (iiiSection 3.4(b)(iii) or contained in any amendment to amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clause (iSection 3.4(b)(i) or (iiSection 3.4(b)(ii) of this paragraph or this clause (iiiSection 3.4(b)(iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect more restrictive, taken as a whole, to the Lenders Company than the encumbrances and restrictions contained in such agreements referred to in clauses (iSection 3.4(b)(i) or (iiSection 3.4(b)(ii) of this paragraph on the date of this Agreement Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c) of the first paragraph of this Section 9.053.4(a)(iii), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement Indenture securing Indebtedness of the Borrower Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(v) (Aa) purchase money obligations for property acquired in the ordinary course of business and (Bb) Capital Capitalized Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (cSection 3.4(a)(iii) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) any Purchase Money Note or other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction;
(vii) any 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 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;
(viiviii) any customary encumbrances or restrictions imposed pursuant provisions in joint venture agreements relating to any agreement referred to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the definition ordinary course of “Permitted Business Investmentbusiness;”
(viiiix) restrictions on cash or other deposits or net worth provisions in leases and other agreements entered into by the Borrower Company or any Restricted Subsidiary in the ordinary course of business; and;
(ixx) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(xi) encumbrances or restrictions contained in indentures or debt instruments or other debt arrangements Incurred or Preferred Stock issued by Subsidiary Guarantors in accordance with Section 3.2 that are not more restrictive, taken as a whole, than those applicable to the Company in either this Indenture or the Senior Credit Agreements on the Issue Date (which results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level); and
(xii) encumbrances or restrictions contained in indentures or other debt instruments or debt arrangements Incurred or Preferred Stock issued by Restricted Subsidiaries that are not Subsidiary Guarantors subsequent to the Issue Date pursuant to Section 3.2(b)(v) and Section 3.2(b)(xiii) by Restricted Subsidiaries, provided that after giving effect to such Incurrence of Indebtedness, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 3.2(a).
Appears in 1 contract
Sources: Indenture (Deluxe Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Borrower Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary (the priority of any Preferred Stock has in receiving dividends dividends, distributions or liquidating distributions prior to dividends before dividends, distributions or liquidating distributions being are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on Common the ability to make dividends or distributions on Capital Stock and any subordination for purposes of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)this covenant;
(b2) make any loans or advances to the Borrower Company or any of its Restricted Subsidiary Subsidiaries (it being understood that the subordination of loans or advances made to the Borrower Company or any of its Restricted Subsidiary Subsidiaries to other Indebtedness Incurred incurred by the Borrower Company or any of its Restricted Subsidiary being Subsidiaries shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
(c3) sell, lease or transfer any of its property properties or assets to the Borrower Company or any of its Restricted Subsidiary. The preceding provisions Subsidiaries.
(b) Section 4.12(a) will not prohibitapply to encumbrances or restrictions existing under or by reason of:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien agreements governing Existing Indebtedness and Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes Facilities as in effect on such date;
(ii) the Issue Date and any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the Restricted Subsidiary was acquired by the Borrower (other than Capital Stock or Indebtedness Incurred as consideration inamendments, or to provide all or any portion of the funds utilized to consummaterestatements, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refundingmodifications, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii)renewals, including successive supplements, refundings, replacements or refinancingsrefinancings of those agreements; provided that the encumbrances and 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 Restricted Subsidiary dividend and other payment restrictions than those contained in those agreements on the Issue Date;
(2) 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 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 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 the Company to make required payments on the Notes;
(4) applicable law, rule, regulation or order;
(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 agreement are no less favorable in any material respect acquisition (except to the Lenders extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions contained in any such agreements referred to amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in clauses (i) or (ii) the reasonable good faith judgment of this paragraph an officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiaryacquisition; provided further, whichever is applicable;
(iv) that, in the case of clause (c) of Indebtedness, such Indebtedness was permitted by the first paragraph terms of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject Indenture to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contractbe incurred;
(B6) contained customary non-assignment provisions in mortgagesHydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, pledges easements or other security agreements permitted under this Agreement securing Indebtedness leases, in each case, entered into in the ordinary course of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiarybusiness;
(v) (A7) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances restrictions on the property purchased or restrictions leased of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired4.12(a)(3);
(vi8) 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) any restriction Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being Refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.10 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with respect 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 (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionis not a Domestic Subsidiary;
(vii13) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) on cash or other deposits or net worth provisions in imposed by customers or lessors under contracts or leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix14) customary encumbrances or and restrictions arising or existing by reason contained in agreements of applicable law or any applicable rule, regulation or orderthe types described in the definition of “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 Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Issuer or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary Subsidiary;
(2) make any loans or advances to the Issuer or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the 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 common stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(by) make any loans or advances to the Borrower or any Restricted Subsidiary (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 being shall not be deemed not to constitute such an encumbrance or restriction); or.
(cb) transfer any The provisions of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions Section 4.07(a) will not prohibit:
(i1) 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 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 Completion Date (as determined in good faith by the Issuer);
(2) [Reserved];
(3) encumbrances or restrictions existing under or by reason of 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, the Notes Escrow Agreement and the Senior Notes Escrow Agreements;
(4) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date instrument of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii) any encumbrance a Person or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by of a Restricted Subsidiary Person, entered into on or before the date on which the Restricted Subsidiary (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 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 Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or in contemplation of was merged, consolidated or otherwise combined with or into the transaction Issuer or transactionsany Restricted Subsidiary) and outstanding on such date; provided that that, for the purposes of this clause (4), if another Person is the Successor Company or any Subsidiary thereof, any agreement or instrument of such Person or any such encumbrance Subsidiary shall be deemed acquired or restriction shall not extend to any assets or property of assumed by the Borrower Issuer or any other Restricted Subsidiary other than when such Person becomes the assets and property so acquiredSuccessor Company;
(iii5) 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 clauses (1), (3), (4) or (5) of this Section 4.07(b) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clause clauses (i1), (3), (4) or (ii5) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iiiSection 4.07(b); provided, including successive refundingshowever, replacements or refinancings; provided 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 such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableIssuer);
(iv6) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements; 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;
(v7) (A) purchase money obligations for property acquired in the ordinary course of business any encumbrance or restriction pursuant to Purchase Money Obligations and (B) Capital Capitalized Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredacquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) 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;
(vii9) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases leases, licenses, joint venture agreements and other similar agreements and instruments entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and;
(ix10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, governmental license or order, or required by any regulatory authority 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 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 Holders of the Notes than (i) the encumbrances and restrictions contained in the Senior Secured Facilities on the Completion Date, together with the security documents associated therewith or (ii) is customary in comparable financings (as determined in good faith by the Issuer) and where, in the case of clause (ii), the Issuer determines at the time of issuance of such Indebtedness that such encumbrances or restrictions (x) will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes as and when they become due or (y) such encumbrances and restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness;
(14) any encumbrance or restrictions arising in connection with any Purchase Money Note, other Indebtedness or a Qualified Receivables Financing that, in the good faith determination of an Officer or the Board of Directors of the Issuer, are necessary or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 4.06.
Appears in 1 contract
Sources: Indenture (CSC Holdings LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Company, (b) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitCompany, except:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of Issue Date (including this Agreement, including, without limitationIndenture, the First Lien Credit Agreements, the indenture governing the Second Lien Notes Facilities and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateIntercreditor Agreement);
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date;
(3) any encumbrance or restriction pursuant to any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or Refinancings of the Indebtedness referred to in any of the foregoing clauses and restrictions contained in Indebtedness incurred after the date hereof in accordance with the terms of this Indenture; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or Refinancings are not materially more restrictive with respect to such 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 other Indebtedness, the provisions relating to such encumbrance or restriction are no less favorable to the Company in any material respect as determined by the Company in its reasonable and good faith judgment than the provisions contained in the Credit Facilities as in effect on the Issue Date;
(4) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(5) any such encumbrance or restriction shall not extend to any assets consisting of customary non-assignment provisions in contracts or in leases governing leasehold interest and in intellectual property of the Borrower or any other Restricted Subsidiary other than the assets contracts and property so acquiredlicenses;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi6) 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 of all or substantially all the assets (including Capital Stock or assets Stock) of such Restricted Subsidiary (or the property or assets that are subject to such restriction) permitted by this Indenture pending the closing of such sale or disposition;
(vii7) customary encumbrances any restriction arising under applicable law, regulation or order;
(8) restrictions imposed pursuant 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 agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into Lien permitted under this Indenture imposed by the Borrower or any Restricted Subsidiary in the ordinary course holder of businesssuch Lien; and
(ix10) encumbrances or restrictions arising or existing that are not materially more restrictive, taken as a whole, than customary provisions in comparable financings and, as determined by reason management of applicable law or any applicable rulethe Company in its reasonable and good faith judgment, regulation or orderwill not materially impair the Company’s ability to make payments as required under the Notes.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company and any Permitted Affiliate Parent will not, and will not permit any Restricted 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:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company, any Permitted Affiliate Parent or any Restricted Subsidiary Subsidiary;
(2) make any loans or advances to the Company, any Permitted Affiliate Parent or any Restricted Subsidiary; or
(3) transfer any of its property or assets to the 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 and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(by) make any loans or advances to the Borrower or any Restricted Subsidiary (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 Company, any Permitted Affiliate Parent or any Restricted Subsidiary being Subsidiary, shall not be deemed not to constitute such an encumbrance or restriction); or.
(cb) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions Section 4.08(a) will not prohibit:
(i1) any encumbrance or restriction pursuant to an agreement in effect at or effect, entered into or substantially agreed, on the date of this Agreement2021 Amendment Effective Date, including, without limitation, the First Lien Credit Agreementsthis Agreement, the indenture governing other Loan Documents, the Second Lien Notes SPV Collateral Documents, any Collateral Sharing 95007615_1 Agreement, the Covenant Agreement, the Proceeds Loan Agreement, the Proceeds Loan Collateral Documents, and any related documentation (including the security documents securing the Indebtedness thereunder and the supplemental indentures governing guarantees thereof), in each case, as in effect, or substantially agreed, on the Existing Notes and the New Senior Notes in effect on such date2021 Amendment Effective Date;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement or instrument of a Person relating to any Capital Stock or Indebtedness of a Person, Incurred by a Restricted Subsidiary on or before the date on which the Restricted Subsidiary such Person was acquired by or merged or consolidated with or into the Borrower Company, a Permitted Affiliate Parent or any Restricted Subsidiary or designated a Permitted Affiliate Parent, an Affiliate Subsidiary or a Restricted Subsidiary (or became a Restricted Subsidiary as a result thereof), or which such agreement or instrument is assumed by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the Borrower Company, a Permitted Affiliate Parent or a Restricted Subsidiary or was merged or consolidated with or into the Company, a Permitted Affiliate Parent or any Restricted Subsidiary or in contemplation of the transaction or transactionssuch transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower Company, a Permitted Affiliate Parent or any other Restricted Subsidiary other than the assets and property so acquired; provided, further, that for the purposes of this Section 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(iii3) 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 referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3) or contained in any amendment, supplement, restatement or other modification to an agreement referred to in clause (iSection 4.08(b)(1) or (iiSection 4.08(b)(2) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iiiSection 4.08(b)(3), including successive refundings, replacements or refinancings; 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 are no less favorable in any material respect to the Lenders Finance Parties than the encumbrances and restrictions contained in such agreements referred to in clauses (iSection 4.08(b)(1) or Section 4.08(b)(2) (ii) as determined conclusively in good faith by the Board of this paragraph on Directors or senior management of the date of this Agreement Company or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablePermitted Affiliate Parent);
(iv4) in the case of clause (c) of the first paragraph of this Section 9.054.08(a)(3), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, 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 Liens permitted under this Agreement securing Indebtedness of the Borrower Company, a Permitted Affiliate Parent or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or;
(C) 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
(D) contained in operating leases for real property and restricting only the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(v5) any encumbrance or restriction pursuant to (A) purchase money obligations Purchase Money Obligations for property acquired in the ordinary course of business and or (B) Capital Capitalized Lease Obligations permitted under this Agreement, in each case, that either (i) impose encumbrances or restrictions of the nature 95007615_1 described in clause (cSection 4.08(a)(3) of the first paragraph of this Section 9.05 on the property so acquiredacquired 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);
(vi6) any encumbrance or restriction 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 Receivables Entity that, in the good faith determination of the Board of Directors or senior management of the Company or a Permitted Affiliate Parent, are necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction (A) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement (or option to enter into such agreement) entered into for the direct or indirect sale or disposition 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;
(vii8) (A) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases leases, asset sale agreements, joint venture agreements and other agreements and instruments entered into by the Borrower Company, a Permitted Affiliate Parent or any Restricted Subsidiary in the ordinary course of business; andbusiness 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);
(ix9) encumbrances or restrictions arising or existing by reason of applicable law Law or any applicable rule, regulation regulation, governmental license, order, concession, franchise, or order.permit or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Currency Agreements, Commodity Agreements or Interest Rate Agreements;
(12) 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 Section 4.09 if (A) the encumbrances and restrictions taken as a whole are not materially less favorable to the Finance Parties than the encumbrances and restrictions contained in this Agreement, the other Loan Documents, and any related documentation, in each case, as in effect on the 2021 Amendment Effective Date (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent) or (B) such encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Finance Parties than is customary in comparable financings (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent) and, in each case, either (i) the Company or a Permitted Affiliate Parent reasonably believes that such encumbrances and restrictions will not materially affect the Proceeds Loan Borrowers’ ability to make principal or interest payments on the Proceeds Loans as and when they come due or (ii) 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 restriction pursuant to any 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. The Holdings and Borrower will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to Borrower or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Borrower, (b) make any loans or advances to the Borrower or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibit:Borrower, except
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of Closing Date (including this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes Agreement and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateSecured Credit Facility);
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsBorrower) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refundingany amendments, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii)modifications, including successive restatements, renewals, increases, supplements, refundings, replacements or refinancingsRefinancings of the Indebtedness referred to in any of the foregoing clauses and restrictions contained in Indebtedness incurred after the date hereof in accordance with the terms of this Agreement; provided that the encumbrances and restrictions such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or 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 restriction are no less favorable to Borrower in any material respect to the Lenders as determined by Borrower in its reasonable and good faith judgment than the encumbrances and restrictions provisions contained in such agreements referred to the Senior Secured Credit Facility as in clauses (i) or (ii) of this paragraph effect on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableClosing Date;
(iv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the case ordinary course of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiarybusiness;
(v) (A) purchase money obligations for any such encumbrance or restriction consisting of customary non-assignment provisions in contracts or in leases governing leasehold interest and in intellectual property acquired in the ordinary course of business contracts and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredlicenses;
(vi) 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 of all or substantially all the assets (including Capital Stock or assets Stock) of such Restricted Subsidiary (or the property or assets that are subject to such restriction) permitted by this Agreement pending the closing of such sale or disposition;
(vii) customary encumbrances any restriction arising under applicable law, regulation or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investmentorder;”
(viii) net worth provisions restrictions contained in leases and other security agreements entered into by the Borrower or any mortgages securing Indebtedness of a Restricted Subsidiary in to the ordinary course extent such restrictions restrict the transfer of businessthe property subject to such security agreements or mortgages; and
(ix) encumbrances or restrictions arising or existing on the transfer of assets subject to any Lien permitted under this Agreement imposed by reason the holder of applicable law or any applicable rule, regulation or ordersuch 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 Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(ai) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries or pay any Indebtedness or other obligations indebtedness owed to the Borrower Company or any its Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Subsidiaries;
(bii) make any loans or advances to the Borrower Company or any of its Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Subsidiaries; or
(ciii) transfer any of its property properties or assets to the Borrower Company or any of its Restricted Subsidiary. Subsidiaries.
(b) The preceding provisions will restrictions set forth in Section 4.12(a) above shall not prohibitapply to encumbrances or restrictions existing under or by reason of:
(i) any encumbrance or restriction pursuant to an agreement Existing Indebtedness as in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateIndenture;
(ii) agreements existing on the date of this Indenture, and any encumbrance amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or restriction refinancings thereof, provided that such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings are no more restrictive, taken as a whole, with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary dividend and other payment restrictions than those contained in agreements as in effect on or before the date on which the Restricted Subsidiary was acquired of this Indenture, as determined in good faith by the Borrower (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion Board of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquiredDirectors;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause this Indenture and the Notes and/or the Collateral Documents;
(iiv) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancingsthe Credit Agreement and/or the documentation for the First Priority Liens; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable more restrictive, taken as a whole (as determined in any material respect to good faith by the Lenders Board of Directors), than the encumbrances and restrictions those contained in such agreements referred to in clauses (i) or (ii) as of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiaryhereof;
(v) applicable law;
(Avi) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(vii) customary non-assignment provisions in leases, licenses and other agreements entered into in the ordinary course of business;
(viii) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 4.08(a)(iii) on the property so acquired;
(viix) any restriction with respect to agreement for the sale of a Restricted Subsidiary (whether by stock sale, asset sale, merger, consolidation or any of its property or assetsotherwise) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of that restricts distributions by such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionits sale;
(viix) 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 encumbrances provisions with respect to the disposition or restrictions imposed pursuant to any agreement referred to distribution of assets or property in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases joint venture agreements and other similar agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; andor
(ixxiii) encumbrances restrictions on cash or restrictions arising other deposits or existing net worth imposed by reason customers under contracts entered into in the ordinary course of applicable law or any applicable rule, regulation or orderbusiness.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) to pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any a Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Subsidiary, (b) to make any loans or advances to the Borrower Company or any a Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) to transfer any of its property or assets to the Borrower Company or any a Restricted Subsidiary. The preceding provisions will not prohibit:
, except: (i) any encumbrance or restriction in the Credit Agreement on the Issue Date or pursuant to an any other agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
Issue Date; (ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph Section 4.06 or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph Section 4.06 or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable in any material respect to the Lenders Securityholders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred agreements; (iv) any such encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to in clauses (i) or (ii) the extent such provisions restrict the transfer of this paragraph on the date of this Agreement lease or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
property leased thereunder; (ivv) in the case of clause (c) of the first paragraph of this Section 9.05above, 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) restrictions contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
Appears in 1 contract
Sources: Indenture (Denbury Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary Subsidiary, (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(bii) make any loans or advances to the Borrower Company or any Restricted Subsidiary or (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(ciii) transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
, except (ia) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, Indenture (including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes this Indenture and the supplemental indentures governing the Existing Notes and the New Senior Notes Credit Agreement in effect on such date;
the date hereof); (iib) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of the transaction or transactionsthereof) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iiic) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (ia) or (iib) of this paragraph Section 3.5 or this clause (iiic) or contained in any amendment to an agreement referred to in clause (ia) or (iib) of this paragraph Section 3.5 or this clause (iiic); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or amendment are no less favorable in any material respect to the Lenders Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in clauses (ia) or and (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
b); (ivd) in the case of clause (ciii) of the first paragraph of this Section 9.05above, 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 securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances encumbrance or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
provided that such mortgage, pledge or other security agreement is permitted under this Indenture 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;
; (v) (Ae) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (ciii) of the first paragraph of this Section 9.05 above on the property so acquired;
; (vif) any Purchase Money Note or other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; (g) 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 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 (vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ixh) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
Appears in 1 contract
Sources: Indenture (Sather Trucking Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
Company, (b) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitCompany, except:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such dateIssue Date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Indebtedness or Preferred Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company (other than Capital Indebtedness or Preferred 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness or Preferred Stock Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph covenant or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph covenant or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are in the aggregate no less favorable in any material respect to the Lenders Securityholders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicablepredecessor agreements;
(iv) any such 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;
(v) in the case of clause (c) of the first paragraph of this Section 9.05above, 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) restrictions contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 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
(vii) customary encumbrances or restrictions imposed pursuant any such restriction applicable to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any a Restricted Subsidiary contained in the ordinary course agreements evidencing or relating to Purchase Money Indebtedness of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or ordersuch Restricted Subsidiary.
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 Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) 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 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);
(by) make any loans or advances to the Borrower or any Restricted Subsidiary (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 being Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, shall not be deemed not to constitute such an encumbrance or restriction); or.
(cb) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions 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 Senior Secured Notes and the Senior Secured Notes Indenture, (iii) the Senior Notes and the Senior Notes Indenture or (iv) the Loan Escrow Agreement, the SSN Escrow Agreement and the SN Escrow Agreement;
(4) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date instrument of this Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(ii) any encumbrance a Person or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by of a Restricted Subsidiary Person, entered into on or before the date on which the Restricted Subsidiary (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 Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of was merged, consolidated or otherwise combined with or into the transaction Borrower or transactionsany Restricted Subsidiary) and outstanding on such date; provided that 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 encumbrance Subsidiary shall be deemed acquired or restriction shall not extend to any assets or property of assumed by the Borrower or any other Restricted Subsidiary other than when such Person becomes the assets and property so acquiredSuccessor Company;
(iii5) 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 clause (iSection 4.07(b)(1), Section 4.07(b)(3) or (iiSection 4.07(b)(4) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iiiSection 4.07(b)(5); provided, including successive refundingshowever, replacements or refinancings; provided 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 such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicableBorrower);
(iv6) in the case of clause (c) of the first paragraph of this Section 9.05, 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 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; or;
(Cc) 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;
(v7) (A) purchase money obligations for property acquired in the ordinary course of business any encumbrance or restriction pursuant to Purchase Money Obligations and (B) Capital Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredacquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) 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;
(vii9) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases leases, licenses, joint venture agreements and other similar agreements and instruments entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and;
(ix10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, governmental license or order, or required by any regulatory authority 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. The Borrower will Company and each Subsidiary Guarantor shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary Company, (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(bii) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(ciii) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibit:
Company, except (ia) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, Issue Date (including, without limitation, the First Lien Revolving Credit Agreements, Facility but after giving effect to the indenture governing use of proceeds from the Second Lien Notes and issuance of the supplemental indentures governing the Existing Notes and the New Senior Notes in effect Securities to retire Indebtedness on such date;
); (iib) 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 Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower became a Restricted Subsidiary (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsSubsidiary) and outstanding on such date; provided that (d) any such encumbrance or restriction shall not extend to imposed by any assets or property of Senior Credit Facility that is no more restrictive than those contained in the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
Revolving Credit Facility; (iiie) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an any agreement effecting a refinancing, refunding, replacement replacement, renewal, repayment or refinancing extension (including pursuant to defeasance or discharger mechanisms) of Indebtedness Incurred pursuant to an agreement referred to in clause (ia), (b), (c) or (iid) of this paragraph Section 3.6 or this clause (iiie) or contained in any amendment to an agreement referred to in clause (ia), (b), (c) or (iid) of this paragraph Section 3.6 or this clause (iiie); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or amendment are no less favorable in any material respect to the Lenders not materially more restrictive than the encumbrances and or restrictions contained in such agreements referred to in clauses agreements; (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(ivf) in the case of clause (ciii) of the first paragraph of this Section 9.05above, 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 securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vig) any 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 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;
; (vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ixh) encumbrances or restrictions arising or existing by reason of applicable law law; (i) 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 restriction pursuant to this Indenture, the Securities or any applicable rule, regulation or orderthe Subsidiary Guarantees.
Appears in 1 contract
Sources: Indenture (Big City Radio Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
(b2) make any loans or advances to the Borrower Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
(c3) transfer any of its property or assets to the Borrower Company or any Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The provisions of the preceding provisions paragraph will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this AgreementIndenture, including, without limitationincluding this Indenture, the First Lien Credit AgreementsSecurities, the indenture governing Exchange Securities, the Second Lien Notes Subsidiary Guarantees and the supplemental indentures governing the Existing Notes Senior Secured Credit Agreement (and the New Senior Notes related documentation) in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the such Restricted Subsidiary was acquired by the Borrower Company or a Restricted Subsidiary (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of the transaction or transactionstransaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Borrower Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect respect, taken as a whole, to the Lenders 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 date of this Agreement Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c3) of the first paragraph of this Section 9.053.4, 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 Indenture securing Indebtedness of the Borrower Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(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;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (Bb) Capital Capitalized Lease Obligations and Synthetic Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (c3) of the first paragraph of this Section 9.05 3.4 on the property so acquired;
(vi) any restriction Purchase Money Note or other Indebtedness or contractual requirements Incurred with respect to a Restricted Subsidiary (or any Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of its property or assets) imposed pursuant the Board of Directors, are necessary to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of 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;
(vii) any customary encumbrances or restrictions imposed pursuant provisions in joint venture agreements relating to any agreement referred to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the definition ordinary course of “Permitted Business Investmentbusiness;”
(viii) restrictions on cash or other deposits or net worth provisions in leases and other agreements entered into by the Borrower Company or any Restricted Subsidiary in the ordinary course of business; and;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.;
(x) encumbrances or restrictions contained in indentures or other debt agreements Incurred or Preferred Stock issued by Restricted Subsidiaries subsequent to the Issue Date and permitted pursuant to Section 3.2; provided that such encumbrances and restrictions 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
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
(b2) make any loans or advances to the Borrower Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
(c3) transfer any of its property or assets to the Borrower Company or any Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The provisions of the preceding provisions paragraph will not prohibit:
(i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this AgreementIndenture, including, without limitationincluding this Indenture, the First Lien Credit AgreementsSecurities, the indenture governing Exchange Securities, the Second Lien Notes Subsidiary Guarantees and the supplemental indentures governing the Existing Notes Senior Secured Credit Agreement (and the New Senior Notes related documentation) in effect on such date;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the such Restricted Subsidiary was acquired by the Borrower Company or a Restricted Subsidiary (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of the transaction or transactionstransaction) and outstanding on such date; provided provided, that any such encumbrance or restriction shall not extend to any assets or property of the Borrower Company or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect respect, taken as a whole, to the Lenders 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 date of this Agreement Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c3) of the first paragraph of this Section 9.053.4, 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 Indenture securing Indebtedness of the Borrower Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(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;
(v) (Aa) purchase money obligations for property acquired in the ordinary course of business and (Bb) Capital Capitalized Lease Obligations and Synthetic Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (c3) of the first paragraph of this Section 9.05 3.4 on the property so acquired;
(vi) any restriction Purchase Money Note or other Indebtedness or contractual requirements Incurred with respect to a Restricted Subsidiary (or any Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of its property or assets) imposed pursuant the Board of Directors, are necessary to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of 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;
(vii) any customary encumbrances or restrictions imposed pursuant provisions in joint venture agreements relating to any agreement referred to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the definition ordinary course of “Permitted Business Investmentbusiness;”
(viii) restrictions on cash or other deposits or net worth provisions in leases and other agreements entered into by the Borrower Company or any Restricted Subsidiary in the ordinary course of business; and;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(x) encumbrances or restrictions contained in indentures or other debt agreements Incurred or Preferred Stock issued by Restricted Subsidiaries subsequent to the Issue Date and permitted pursuant to Section 3.2; provided that such encumbrances and restrictions 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
(xii) provisions limiting the disposition or distribution of assets or property in asset sale agreements, 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 assets that are the subject of such agreements.
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 Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Borrower Issuer or any of its Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Subsidiaries;
(b2) make any loans or advances to the Borrower Issuer or any of its Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Subsidiaries; or
(c3) sell, lease or otherwise transfer any of its property properties or assets to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries. The However, the preceding provisions restrictions will not prohibitapply to encumbrances or restrictions existing under or by reason of:
(i) any encumbrance or restriction pursuant to an agreement 1. agreements as in effect at or entered into on the date of this AgreementIssue Date, including, without limitation, the First Lien including agreements governing Existing Indebtedness and Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes Facilities as in effect or entered into on such date;
(ii) the Issue Date, and any encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction refinancings of those agreements; provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to a Restricted Subsidiary pursuant to an agreement relating to such dividend and other payment restrictions than those contained in those agreements on the 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 Indebtedness Incurred by other agreement of a Restricted Subsidiary on or before the date on which the Restricted Subsidiary was Person acquired by the Borrower Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (other than except to the extent such Indebtedness or Capital Stock or Indebtedness Incurred other agreement was incurred, issued or entered into, as consideration inapplicable, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower in connection with or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such acquisition), which encumbrance or restriction shall is not extend applicable to any Person, or the properties or assets or property of the Borrower or any other Restricted Subsidiary Person, other than the Person, or the property or assets and property of the Person, so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiarythat, whichever is applicable;
(iv) in the case of clause (c) of Indebtedness, such Indebtedness was permitted by the first paragraph terms of this Section 9.05, any encumbrance or restriction:Indenture to be incurred;
(A) that restricts in a 5. 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 such lease, license or other contractasset;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary 6. obligations applicable to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business business, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions restrict the transfer of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredpurchased or leased;
(vi) 7. any restriction with respect to agreement for the sale or other disposition of 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 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 of such agreement);
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. 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 are 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, Cash Equivalents, marketable securities, or other deposits or net worth;
12. agreements 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 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 restrictiondividend and other payment restrictions applicable to such Restricted Subsidiary than those contained in the agreements covered by clauses (1) pending or (2) of this paragraph;
14. any instrument governing any Indebtedness or Capital Stock of any Unrestricted Subsidiary as in effect on the closing date, if any, that such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary; provided that such encumbrance or restriction is not applicable to any Person, or to 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;
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 (a) those contained in the agreements covered by clauses (1) or (2) 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 Issuer), and where, in the case of this sub-clause (b), the Issuer determines at the time of incurrence of such sale Indebtedness or disposition;
(vii) customary issuance of such 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 (as 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 pursuant to any agreement referred to by customers or suppliers or required by insurance, surety or bonding companies, in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements each case, under contracts entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
18. 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 Issuer or any of its 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 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; and
20. arising under any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of an agreement or arrangement referred to in clauses (ix1), (2), (4), (6), (8), (12), (13), (14), (16) and (18) above; provided that such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is not materially more restrictive, as determined in good faith by a responsible financial or accounting officer of the 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 restrictions arising or existing by reason of applicable law or any applicable rule, regulation or orderrefinancing.
Appears in 1 contract
Sources: Indenture (CPI Card Group Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will not(a) Neither the Company nor a Guarantor shall, and will not neither of them shall permit any Restricted Subsidiary to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(a1) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock to the Company, a Guarantor or any other Restricted Subsidiary,
(2) pay any Indebtedness Debt or other obligations obligation owed to the Borrower Company, a Guarantor or any other Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);Subsidiary,
(b3) make any loans or advances to the Borrower Company, a Guarantor or any other Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); Subsidiary, or
(c4) transfer any of its property or assets Property to the Borrower Company, a Guarantor or any other Restricted Subsidiary. .
(b) The preceding provisions foregoing limitations will not prohibitapply:
(i1) any encumbrance or restriction pursuant with respect to an agreement Sections 4.13(a)(1), (2), (3) and (4), to restrictions which are:
(A) in effect at on the Issue Date (as such restrictions may be amended from time to time; provided that any such amendment is not materially more restrictive as to a Restricted Subsidiary);
(B) imposed by the Notes or entered into 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 Notes Guarantees; provided that the restrictions 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), (2), (3) or (4) above are not materially more restrictive than the restrictions imposed by the Credit Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(iiD) any encumbrance or restriction with respect to imposed by Debt of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by existing at the time it became a Restricted Subsidiary on if such restriction was not created in connection with or before the date on which the Restricted Subsidiary was acquired by the Borrower (other than Capital Stock 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquireda Guarantor;
(iiiE) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing that result from the Refinancing of Indebtedness Debt Incurred pursuant to an agreement referred to in clause (iSection 4.13(a)(1) or (ii4) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancingsabove; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are restriction is no less favorable in any material respect to the Lenders Holders of Notes than those under the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on agreement evidencing the date of this Agreement or the date such Restricted Subsidiary became Debt so Refinanced when taken as a Restricted Subsidiary, whichever is applicablewhole;
(ivF) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license restrictions on cash or other contract;
(B) contained in mortgages, pledges deposits or net worth imposed by leases or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired entered into in the ordinary course of business and business;
(BG) Capital Lease Obligations permitted under this Agreement, in each case, that impose any encumbrances or restrictions required by any 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 nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquiredCompany, a Guarantor or any Restricted Subsidiary by such governmental authority;
(viH) 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 (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) with respect to a Securitization Entity in connection with a Qualified Securitization Transaction; provided, however, that such encumbrances 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 dispose of all or substantially all the Capital Stock or assets of such Restricted Subsidiary Subsidiary; or
(K) 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 sale agreements or disposition;any rights thereunder.
(vii2) customary encumbrances or restrictions imposed with respect to Section 4.12(a)(4) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to any agreement referred Section 4.11 that limit the right of the debtor to in dispose of the definition of “Permitted Business Investment;”Property securing such Debt,
(viiiB) net worth provisions in leases and other agreements entered into encumbering Property at the time such Property was acquired by the Borrower Company or any Restricted Subsidiary, so long as such restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such acquisition,
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder,
(D) imposed by virtue of any transfer of, 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; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or orderbusiness with respect only to the Property the subject thereof.
Appears in 1 contract
Sources: Indenture (Moore Wallace Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will not, and will not permit any Restricted 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:
(a) to pay dividends or make any other distributions on its Capital Stock to the Borrower or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior Borrower, to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions);
(b) make any loans or advances to the Borrower or any a Restricted Subsidiary (the subordination or to Guarantee Indebtedness of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary. The preceding provisions will Subsidiary that owns Capital Stock therein; provided that the foregoing shall not prohibit:
apply to (i) restrictions and conditions imposed by law or by this Agreement; (ii) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreementhereof identified on Schedule 6.07 (but shall apply to any extension or renewal of, includingor any amendment or modification expanding the scope of, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on any such date;
restriction or condition); (iiiii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating applicable to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower (other than Capital Stock or Indebtedness Incurred as consideration inan agreement entered into in connection with, 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsBorrower) and outstanding on such date; provided that (iv) any such encumbrance or restriction shall not extend consisting of customary non-assignment provisions in leases governing leasehold interests to any assets or property the extent such provisions restrict the transfer of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement lease or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
property leased thereunder; (ivv) in the case of clause (c) a Restricted Subsidiary transferring any of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any its property or asset that is subject assets to a leasethe Borrower, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) restrictions contained in mortgages, pledges or other security agreements permitted under this Agreement or mortgages securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such security agreements or mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (A) purchase money obligations for property acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 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 (viia) customary encumbrances of the foregoing shall not apply to restrictions or restrictions conditions imposed pursuant to by any agreement referred relating to in secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower property or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or orderassets securing such Indebtedness.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
: (a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
; (b2) make any loans or advances to the Borrower Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
or (c3) transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary. .
(b) The preceding provisions will not prohibit:
: (i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this Agreement, Issue Date including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes this Indenture and the supplemental indentures governing the Existing Notes and the New Senior Notes Credit Agreement in effect on such date;
the Issue Date; (ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the such Restricted Subsidiary was acquired by the Borrower Company (other than Capital Stock or Indebtedness Incurred as consideration in, or 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of the transaction or transactionstransaction) and outstanding on such date; provided that any such encumbrance or restriction shall may not extend to any other Restricted Subsidiaries or assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
Company; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
; (iv) in the case of clause (c3) of the first paragraph of this Section 9.053.7, 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 the Indenture securing Indebtedness of the Borrower Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
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;; (v)
(v) (Aa) purchase money obligations for property and (b) customary provisions contained in leases and other similar agreements, in each case, acquired in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c3) of the first paragraph of this Section 9.05 3.7 on the property so acquired;
; (vi) any Purchase Money Note or other Indebtedness or contractual requirements Incurred with respect to a 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
; (viii) net worth customary provisions in leases joint venture agreements and other similar agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances restrictions on cash or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.other
Appears in 1 contract
Sources: Indenture (Tower Automotive Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Borrower Company or any other Restricted Subsidiary (the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being deemed not to constitute such encumbrances or restrictions)Subsidiary;
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction)Subsidiary; or
(c) transfer any of its property or assets Property to the Borrower Company or any other Restricted Subsidiary. The preceding provisions foregoing limitations will not prohibitapply:
(i1) any encumbrance to restrictions or restriction pursuant to an agreement encumbrances existing under or by reason of:
(A) agreements in effect at or entered into on the date of this Agreement, Issue Date (including, without limitation, restrictions pursuant to the First Lien Credit AgreementsNotes, this Indenture, the indenture governing the Second Lien Notes Subsidiary Guaranties and the supplemental indentures governing Senior Credit Facility), and any amendments, modifications, restatements, renewals, replacements, refundings, refinancings, increases or supplements of those agreements, provided that the Existing Notes and encumbrances or restrictions contained in any such amendments, modifications, restatements, renewals, replacements, refundings, refinancings, increases or supplements taken as a whole, are not materially more restrictive than the New Senior Notes encumbrances or restrictions contained in effect agreements to which they relate as in place on such date;the Issue Date,
(iiB) any encumbrance Debt or restriction with respect to Capital Stock of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by existing at the time it became a Restricted Subsidiary on or before at the date on which time it merges with or into the Company or a Restricted Subsidiary if such restriction was acquired by the Borrower (other than Capital Stock not created in 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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company, and any amendments, modifications, restatements, renewals, replacements, refundings, refinancings, increases or in contemplation supplements of the transaction or transactions) and outstanding on such date; those instruments, provided that the encumbrances or restrictions contained in any such encumbrance amendments, modifications, restatements, renewals, replacements, refundings, refinancings, increases or restriction shall supplements, taken as a whole, are not extend to any assets or property of the Borrower or any other Restricted Subsidiary other materially more restrictive than the assets and property so acquired;encumbrances or restrictions contained in instruments in effect on the date of acquisition,
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing the Refinancing of Indebtedness Debt Incurred pursuant to an agreement referred to in clause (i1)(A) or (iiB) of this paragraph above or this clause (iii) or contained in any amendment to an agreement referred to in clause (i2)(A) or (iiB) below, provided such restrictions are not materially less favorable, taken as a whole to the holders of this paragraph Notes than those under the agreement evidencing the Debt so Refinanced,
(D) any applicable law, rule, regulation or this clause order,
(iii)E) Permitted Refinancing Debt, including successive refundingsprovided that the restrictions contained in the agreements governing such Permitted Refinancing Debt, replacements taken as a whole, are not materially more restrictive than those contained in the agreements governing the Debt being refinanced,
(F) Liens securing obligations otherwise permitted to be incurred under the provisions of the covenant described above under the caption Section 4.11 or refinancingsSection 4.16 that limit the right of the debtor to dispose of the assets subject to such Liens,
(G) customary provisions limiting or prohibiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, Sale and Leaseback Transactions, stock sale agreements and other similar agreements 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,
(H) 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, or
(I) arising under Debt or other contractual requirements of a Securitization Entity in connection with a Qualified Securitization Transaction; provided that the encumbrances and such restrictions apply only to such Securitization Entity; and
(2) with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c) of the first paragraph of this Section 9.05only, any encumbrance to restrictions or restrictionencumbrances:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset relating to Debt that is subject permitted to a lease, license or similar contract, be Incurred and secured without also securing the Notes or the assignment or transfer applicable Subsidiary Guaranty pursuant to the covenants described under Section 4.09 and Section 4.11 that limit the right of any the debtor to dispose of the Property securing such lease, license or other contract;Debt,
(B) contained in mortgagesencumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary so long as such restrictions relate solely to the extent Property so acquired and were not created in connection with or in anticipation of such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; oracquisition,
(C) pursuant to resulting from customary provisions restricting dispositions subletting or assignment of real property interests set forth leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder,
(D) customary restrictions contained in any reciprocal easement agreements asset purchase, stock purchase, merger or other similar agreement, pending the closing of the Borrower or any Restricted Subsidiary;transaction contemplated thereby, or
(vE) (A) purchase money obligations for property acquired customary restrictions contained in joint venture agreements entered into in the ordinary course of business and (B) Capital Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions of the nature described in clause (c) of the first paragraph of this Section 9.05 on the property so acquired;
(vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or ordergood faith.
Appears in 1 contract
Sources: Indenture (Novelis Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
: (a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
; (b2) make any loans or advances to the Borrower Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
or (c3) transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary. .
(b) The preceding provisions of Section 3.6(a) will not prohibit:
: (i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this AgreementIndenture, including, including without limitation, the First Lien Credit Agreementsthis Indenture, the indenture governing Subsidiary Guarantee, the Second Lien Notes Collateral Documents, the Intercreditor Agreement, the ABL Credit Agreement, the ABL Loan Documents, the Term Loan Credit Agreement and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
Term Loan Documents; (ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower Company or in contemplation of the transaction or transactionstransaction) and outstanding on such date; provided date provided, that any such encumbrance or restriction shall not extend to any assets or property of the Borrower Company or any other Restricted Subsidiary other than the assets and property so acquired;
; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iSection 3.6(b)(i) or (iib)(ii) of this paragraph or this clause (iiiSection 3.6(b)(iii) or contained in any amendment to an agreement referred to in clause (iSection 3.6(b)(i) or (iib)(ii) of this paragraph or this clause (iiiSection 3.6(b)(iii); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in clauses (iSection 3.6(b)(i) or (iib)(ii) of this paragraph on the date of this Agreement Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
; (iv) in the case of clause (c) of the first paragraph of this Section 9.053.6(b)(iii), 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 the Indenture securing Indebtedness of the Borrower Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
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;; (v)
(v) (Aa) purchase money obligations for property acquired in the ordinary course of business and (Bb) Capital Capitalized Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (c3) of the first paragraph of this Section 9.05 3.6(a) on the property so acquired;
; (vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
; (vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower Company or any Restricted Subsidiary in the ordinary course of business; and
and (ixviii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
Appears in 1 contract
Sources: Indenture (NBC Acquisition Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
: (a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and any subordination of any such Indebtedness or other obligations being shall not be deemed not a restriction on the ability to constitute such encumbrances or restrictionsmake distributions on Capital Stock);
; (b2) make any loans or advances to the Borrower Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary being shall not be deemed not a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
or (c3) transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary. .
(b) The preceding provisions of Section 3.6(a) will not prohibit:
: (i) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the date of this AgreementIndenture, including, without limitation, the First Lien Credit Agreementsthis Indenture, the indenture governing for the Second Lien Notes 8 5/8% Notes, the Subsidiary Guarantee, the Collateral Documents, the Intercreditor Agreement and the supplemental indentures governing the Existing Notes Credit Agreement (and the New Senior Notes in effect on such date;
related documentation); (ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a Restricted Subsidiary on or before the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactions) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;of
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii), including successive refundings, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the date of this Agreement or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Borrower or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) (Aa) purchase money obligations for property acquired in the ordinary course of business and (Bb) Capital Capitalized Lease Obligations permitted under this AgreementIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (c3) of the first paragraph of this Section 9.05 3.6(a) on the property so acquired;
; (vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
; (vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower Company or any Restricted Subsidiary in the ordinary course of business; and
and (ixviii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order.
Appears in 1 contract
Sources: Indenture (Nebraska Book Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary Company (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common other Capital Stock and any subordination of any such Indebtedness shall be deemed to not be a restriction on the ability to pay dividends or make other obligations being deemed not to constitute such encumbrances or restrictionsdistributions on Capital Stock);
, (b) make any loans or advances to the Borrower Company or any Restricted Subsidiary (the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary being deemed not to constitute such an encumbrance or restriction); or
(c) transfer any of its property or assets to the Borrower or any Restricted Subsidiary. The preceding provisions will not prohibitCompany, except:
(i1) 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 date of this Issue Date, including the Revolving Credit Agreement or the Delayed Draw Credit Agreement, including, without limitation, the First Lien Credit Agreements, the indenture governing the Second Lien Notes and the supplemental indentures governing the Existing Notes and the New Senior Notes in effect on such date;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by a such Restricted Subsidiary on or before prior to the date on which the such Restricted Subsidiary was acquired by the Borrower Company (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 Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or in contemplation of the transaction or transactionsCompany) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property so acquired;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (iSection 4.05(1)(A) or (iiB) of this paragraph or this clause (iiiC) or contained in any amendment to an agreement referred to in clause (iSection 4.05(1)(A) or (iiB) of this paragraph or this clause (iiiC); provided, including successive refundingshowever, replacements or refinancings; provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no not materially less favorable favorable, taken as a whole, to the Company (as determined by the Board of Directors in its good faith judgment) than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;
(D) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (including by merger or consolidation) pending the closing of such transaction;
(E) 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 was Incurred by such Foreign Subsidiary in compliance with the terms of this Indenture;
(H) provisions contained in any material 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 supermajority voting provisions and other customary provisions with respect to the Lenders than disposition or distribution of earnings or other assets, 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 restrictions either (1) the provisions relating to such encumbrance or restriction contained in such agreements referred 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 clauses (i) good faith, than the provisions contained in the Revolving Credit Agreement as in effect on the Issue Date or (ii2) 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 this paragraph 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 date of this Agreement Securities when due; and
(M) any encumbrance or the date such Restricted Subsidiary became restriction arising pursuant to a Restricted Subsidiary, whichever is applicableCash Management Arrangement;
(iv2) in the case of with respect to clause (c) of the first paragraph of this Section 9.05, any encumbrance or restriction:only,
(A) that restricts any encumbrance or restriction consisting of customary nonassignment provisions in a customary manner leases, licenses or similar agreements to the subletting, assignment or 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 such lease, license or other contractproperty subject thereto;
(B) 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 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; 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;; and
(vD) (A) purchase money obligations for property acquired encumbrances and restrictions contained in contracts entered into in the ordinary course of business not relating to any Indebtedness, and (B) Capital Lease Obligations permitted under this Agreementthat do not, individually or in each casethe aggregate, that impose encumbrances or restrictions of detract from the nature described in clause (c) of the first paragraph of this Section 9.05 on the value, property so acquired;
(vi) 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 of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment;”
(viii) net worth provisions in leases and other agreements entered into by the Borrower Company or any Restricted Subsidiary in any manner material to the ordinary course Company and its Restricted Subsidiaries taken as a whole. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of business; and
(ix) encumbrances assets or restrictions arising property may also apply to all improvements, repairs, additions, attachments and accessions thereto, assets and property affixed or existing by reason of applicable law or any applicable ruleappurtenant thereto, regulation or orderparts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
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Sources: Indenture (U.S. Concrete, Inc.)