Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to: (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary; (ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or (iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction. (b) Section 7.08(a) shall not prohibit: (i) 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; (ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees; (iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order; (iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), 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 Borrower or any Restricted Subsidiary when such Person becomes the Successor Company; (v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement; (B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary; (vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired; (vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; (viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments; (ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority; (x) 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 or consistent with past practice; (xi) any encumbrance or restriction pursuant to Hedging Obligations; (xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries; (xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility; (xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument; (xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or (xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 10 contracts
Sources: Credit Agreement (Frontier Communications Parent, Inc.), Credit Agreement (Frontier Communications Parent, Inc.), Credit Agreement (Frontier Communications Parent, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on or prior to the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents and Notes or the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or orderorder or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquiredsubject property;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness Indebtedness, permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (b), where either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 5 contracts
Sources: Indenture (Carvana Co.), Indenture (Carvana Co.), Indenture (Carvana Co.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Company, (ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; Company (provided that (x) the dividend or liquidation priority between classes of Capital Stock, or subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit), except any encumbrance or restriction:
(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 Closing Issue Date, including, without limitation, this Indenture, the Notes, the Senior Credit Facilities or any other Credit Facility;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (other than Capital Stock or except to the extent that such Indebtedness Incurred as consideration inwas incurred to finance, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with with, such transaction) and outstanding on such dateacquisition, merger or consolidation); provided that, that for the purposes of this clause (iv2), if another a Person other than the Company is the Successor CompanyCompany with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Borrower Company or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the such Successor Company;
(v3) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any encumbrance amendment, supplement or restriction:other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement;
contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict restricting the transfer or encumbrance of the property or assets subject to such mortgagesthereto, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) 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;
, (viE) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, (I) pursuant to Hedging Obligations or (J) in connection with or relating to any Vehicle Rental Concession Right or (K) that is included in the constating documents of a Special Purpose Entity;
(vii5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii6) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(x7) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof407 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders of the Notes than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Company), or (bii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (b), either (ax) the Borrower Company determines at the time of entry into such agreement or instrument in good faith that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary, (C) of or instrument;
(xv) any encumbrance relating to Indebtedness of or restriction existing a Financing Disposition by reason or to or in favor of any Lien permitted under Section 7.01 hereof; or
Special Purpose Entity or (xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xvD) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) a financing arrangement of this Section 7.08(b) or this clause (xvi); provided, however, that a Special Purpose Entity organized outside the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIUnited States.
Appears in 5 contracts
Sources: Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNote Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), 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 Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Issuer or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerIssuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of clause (bii), either (aA) the Borrower Issuer determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 3 contracts
Sources: Indenture (Frontier Communications Corp), Indenture (Frontier Communications Corp), Indenture (Frontier Communications Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNote Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), 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 Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Issuer or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerIssuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of clause (bii), either (aA) the Borrower Issuer determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 3 contracts
Sources: Indenture (Frontier Communications Parent, Inc.), Indenture (Frontier Communications Parent, Inc.), Indenture (Frontier Communications Parent, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Parent will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Parent or any other Restricted Subsidiary;, or with respect to any other interest or participation in, or measured by, its profits;
(ii) make any loans or advances to the Borrower Parent or any other Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower Parent or any other Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Parent or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.04(a) shall will not prohibit:
(i) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility, (b) the Intercreditor Agreement, the ABL Intercreditor Agreement or any Additional Intercreditor Agreement, (c) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date, (d) the indenture governing the Super Senior Notes or (e) the indenture governing the Stub Notes;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Parent or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Parent or was merged, consolidated or otherwise combined with or into the Borrower Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.04(b)(ii), if another Person is the Successor CompanyCompany (as defined in Section 5.01(a)(i)), any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xviiii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b4.04(b)(i), Section 4.04(b)(ii) or this clause (xviSection 4.04(b)(iii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b4.04(b)(i), Section 4.04(b)(ii) or this clause (xviSection 4.04(b)(iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerBoard of Directors or an Officer of the Parent). Notwithstanding ;
(iv) any encumbrance or restriction:
A. that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
B. contained in mortgages, charges, pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Parent or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, charges, 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 Parent or any Restricted Subsidiary;
(v) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired, or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the distribution or transfer of the assets or Capital Stock of the joint venture;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(ix) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(x) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements, Commodity Hedging Agreements or in connection with any Qualified Securitization Financing;
(xi) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.01 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 this Indenture and the Intercreditor Agreement, together with the Security Documents associated therewith, in each case, as in effect on the Issue Date, or the ABL Intercreditor Agreement or (ii) as is customary in comparable financings (as determined in good faith by the Board of Directors or an Officer of the Parent) or where the Parent determines that such encumbrance or restriction will not adversely affect, in any material respect, the consummation Issuers’ ability to make principal or interest payments on the Notes; or
(xii) any encumbrance or restriction existing by reason of the Transactions shall not be prohibited by Article VIIany lien permitted under Section 4.03.
Appears in 2 contracts
Sources: Indenture (Ferroglobe PLC), Indenture (Ferroglobe PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, (ii) the Existing Notes, including any Guarantee thereof, or (iii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents ABL and the Existing Notes Indentures, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bclause(ii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 2 contracts
Sources: Indenture (Builders FirstSource, Inc.), Indenture (Builders FirstSource, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, (ii) the Existing Notes, including any Guarantee thereof or (iii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents ABL and the Existing Notes Indentures, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bclause(ii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 2 contracts
Sources: Indenture (Builders FirstSource, Inc.), Indenture (Builders FirstSource, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Borrower, (ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; (provided that (x) neither the Transactions, nor dividend or liquidation priority between classes of Capital Stock, nor subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not obligation, will be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit), except any encumbrance or restriction:
(ia) any encumbrance or restriction pursuant to any credit facility an agreement, arrangement or any other agreement or instrument, in each case, instrument in effect at or entered into on the Closing Effective Date, any Credit Facility, and, on and after the execution and delivery thereof, any Intercreditor Agreement, any Permitted Debt Exchange Notes (and any related documents) and any Additional Obligations Documents;
(iib) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration infrom such Person, or to provide all or any portion of the funds utilized to consummate, the other transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was Incurred to finance, or otherwise in connection with with, such acquisition, merger, consolidation or transaction) and outstanding on such date); provided that, that for the purposes of this clause (ivsubsection 7.9(b), if another a Person other than the Borrower is the Successor CompanyCompany with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Borrower or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the such Successor Company;
(vc) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any encumbrance agreement or restriction:instrument referred to in subsections 7.9(a) or (b) above or this subsection 7.9(c) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Lenders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Borrower, which determination shall be conclusive);
(Ai) pursuant to any agreement or instrument that restricts in a customary manner (as determined in good faith by the Borrower, which determination shall be conclusive) the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset that is subject thereto, (ii) by virtue of any transfer of, agreement to a leasetransfer, license option or similar contract or agreementright with respect to, or Lien on, any property or assets of the assignment Borrower or transfer of any leaseRestricted Subsidiary not otherwise prohibited by this Agreement, license or other contract or agreement;
(Biii) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness or other obligations of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict restricting the transfer or encumbrance of the property or assets subject to such mortgagesthereto, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Div) pursuant to customary provisions (as determined in good faith by the Borrower, which determination shall be conclusive) restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
, (viv) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property or assets so acquired, (vi) on cash or other deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (vii) pursuant to customary provisions (as determined in good faith by the Borrower, which determination shall be conclusive) contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries, (viii) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Borrower or any Restricted Subsidiary in any manner material to the Borrower or such Restricted Subsidiary, (ix) pursuant to Hedging Obligations or Bank Products Obligations or (x) with respect to which the Borrower determines in good faith, which determination shall be conclusive, that such encumbrance or restriction will not materially affect the Borrower’s ability to make principal or interest payments on the Loans;
(viie) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of (A) property or assets of such Restricted Subsidiary or (B) all or substantially all of the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) Subsidiary, in each case, pending the closing of such sale or disposition;
(viiif) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;
(x) authority having jurisdiction over the Borrower or any encumbrance Restricted Subsidiary or restriction on cash any of their businesses, including any such law, rule, regulation, order or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Qualified Securitization Financing Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;Home Warranty Subsidiary; or
(xivg) any encumbrance or restriction arising pursuant to an agreement or instrument (i) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Effective Date pursuant to the provisions of Section 7.03 hereofsubsection 7.1, (A) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Borrower, which determination shall be conclusive), or (bB) if such encumbrance or restriction is not materially more disadvantageous to the Lenders than is customary in comparable financings (as determined in good faith by the Borrower, which determination shall be conclusive) and where, in the case of clause (b), either (ax) the Borrower determines at the time of entry into such agreement or instrument in good faith, which determination shall be conclusive, that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the Borrower’s ability to make principal or interest payments on the Secured Obligations Loans or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement Indebtedness, (ii) relating to any sale of receivables by or instrument;
Indebtedness of a Foreign Subsidiary or (xviii) any encumbrance relating to Indebtedness of or restriction existing a Financing Disposition by reason or to or in favor of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIISpecial Purpose Entity.
Appears in 2 contracts
Sources: Credit Agreement (Frontdoor, Inc.), Credit Agreement (Servicemaster Global Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in cash or otherwise on respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Borrower Issuer or any other Restricted Subsidiary;Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(iib) make any loans or advances to the Borrower Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Issuer or any Restricted Subsidiary; Subsidiary to other Debt Incurred by the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(iiic) sell, lease or transfer any of its property or assets Property to the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any other Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary (it being understood that such transfers shall not be deemed to constitute such an encumbrance include any type of transfer described in clause (a) or restriction.
(b) Section 7.08(a) shall above). The foregoing limitations will not prohibitapply to restrictions:
(i) any encumbrance or restriction pursuant to any credit facility or any other agreement or instrument, in each case, (a) in effect at or entered into on the Closing Issue Date, including, but not limited to the Credit Agreement;
(ii) any encumbrance relating to Debt of a Restricted Subsidiary existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or restriction in anticipation of the transaction or series of transactions pursuant to this Agreement, which that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Collateral Documents and the GuaranteesIssuer;
(iii) that result from any encumbrance amendment, restatement, modification, renewal, supplement, extension, replacement or restriction Refinancing of Debt Incurred pursuant to an agreement referred to in clause (i) or (ii) above, in clause (vi), (vii) or (x) below or this clause (iii), provided that the restriction contained in such amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially more restrictive (as determined in good faith by the Issuer’s Board of Directors), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in clauses (i), (ii), (vi), (vii) or (x) or this clause (iii), as applicable;
(iv) resulting from the Incurrence of any Permitted Debt as defined in Section 4.04, provided that the restriction is no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Issuer’s Board of Directors) than the restrictions of the same type contained in this Indenture;
(v) existing by reason of applicable law, rule, regulation or order;
(ivvi) any encumbrance or restriction with respect to clause (c) above only, relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to an agreement or instrument Section 4.04 and Section 4.06 that limit the right of a Person or relating the debtor to any Capital Stock or Indebtedness dispose of a Person, entered into on or before the date on which such Person Property securing that Debt;
(vii) encumbering Property at the time the Property was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or so long as the restriction relates solely to the Property so acquired and was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary not created in connection with an acquisition of assets (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 Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), 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 Borrower or any Restricted Subsidiary when such Person becomes the Successor Companyacquisition;
(vviii) any encumbrance resulting from customary provisions restricting subletting or restriction:
assignment of leases or customary provisions in other agreements (A) that restricts in a customary manner the sublettingincluding, assignment or transfer of any without limitation, intellectual property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party licenses entered into in the ordinary course of business or consistent with past practice; provided business) that such agreement prohibits the encumbrance of solely the property or assets restrict assignment of the Borrower agreements or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instrumentsthereunder;
(ix) encumbrances or which are customary restrictions arising or existing by reason contained in asset sale agreements limiting the transfer of applicable law or any applicable rule, regulation or order, or required by any regulatory authorityProperty pending the closing of the sale;
(x) existing pursuant to any encumbrance Debt Incurred by a Foreign Subsidiary, which restrictions are customary for a financing of such type, and which are otherwise permitted under this Indenture, provided, however, that the Issuer’s Board of Directors determines in good faith that such restrictions are not reasonably likely to impair the Issuer’s ability to make principal and interest payments on the Notes;
(xi) existing by reason of this Indenture, the Notes, and the Note Guarantees;
(xii) with respect to the disposition or restriction distribution of assets or property in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(xiii) on cash or other deposits or net worth imposed by customers under agreements contracts entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facilitybusiness;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of the provision described in clause (b)c) of the first paragraph of this covenant: arising or agreed to in the ordinary course of business, either (a) not relating to any Debt, and that do not, individually or in the Borrower determines at aggregate, detract from the time value of entry into such agreement property or instrument that such encumbrances assets of the Issuer or restrictions will not adversely affect, any Restricted Subsidiary thereof in any manner material respect, to the Borrower’s ability to make principal Issuer or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentany Restricted Subsidiary thereof;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereofcontained in Hedging Obligations; orand
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and constituting customary restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect a Securitization Subsidiary, pursuant to the Lenders taken as terms of a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIPermitted Receivables Financing.
Appears in 2 contracts
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Except as provided in Section 3.10(b), the Company shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on or in cash or otherwise on respect of its Capital Stock to the Company or any other Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any other Restricted Subsidiary;
(ii) make any loans or advances to to, or Guarantee any Indebtedness or other obligations of, or make any Investment in, the Borrower Company or any other Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower Company or any other Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a3.10(a) shall not prohibitapply to encumbrances or restrictions existing as of the Issue Date or otherwise under or by reason of:
(i) 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 Dateapplicable law;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesDocuments;
(iii) any encumbrance agreements governing any First Priority Lien Obligations or restriction pursuant to applicable law, rule, regulation or orderSecond Priority Lien Obligations (including this Indenture and the First Lien Notes Indenture);
(iv) customary non-assignment provisions of any encumbrance contract and customary provisions restricting assignment or restriction pursuant to an agreement or instrument subletting in any lease governing a leasehold interest of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as any customary restriction on the ability of a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration into dividend, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated distribute or otherwise combined with or into the Borrower or transfer any Restricted Subsidiary or entered into asset which secures Indebtedness secured by a Lien, in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of each case permitted to be Incurred under this clause (iv), 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 Borrower or any Restricted Subsidiary when such Person becomes the Successor CompanyIndenture;
(v) existing with respect to 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 agreementPerson, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgagesof any Person, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which at the Borrower time the Person is acquired by the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business Subsidiaries, which encumbrances or consistent with past practice; provided that such agreement prohibits the encumbrance of solely restrictions (1) are not applicable to any other Person or the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset Person and (2) were not put in place in anticipation of such event and any extensions, renewals, replacements or property refinancings of any of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiaryforegoing; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement the extension, renewal, replacement or instrument are refinancing are, taken as a whole, no less favorable in any material respect to the Lenders taken as a whole Holders than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(vi) restrictions with respect to one of the Company’s Subsidiaries and imposed pursuant to an agreement that has been entered into for the sale or disposition of the Capital Stock of, or property and assets of, such Subsidiary that is permitted by Section 3.7;
(vii) customary restrictions imposed on the transfer of copyrighted or patented materials; or
(viii) an agreement governing Indebtedness Incurred to refinance the Indebtedness issued, assumed or Incurred pursuant to Section 3.10(b)(iii); provided, that such refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the Initial Agreement or Initial Agreements agreements governing the Indebtedness referred to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerSection 3.10(b)(iii). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 2 contracts
Sources: Indenture (Iusacell S a De C V), Indenture (Inmobiliaria Montes Urales 460 S a De C V)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv2), 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 Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) 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;
(vi4) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii5) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii6) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instruments;
(ix7) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 8) 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 or consistent with past practicebusiness;
(xi9) any encumbrance or restriction pursuant to Hedging Obligations;
(xii10) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Escrow Release Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii11) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerIssuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of clause (bii), either (aA) the Borrower Issuer determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv13) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi14) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 2 contracts
Sources: Indenture (Epicor International Holdings, Inc.), Indenture (Epicor Software Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall not, and shall not permit any Restricted Subsidiary to, create Create 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 (ia) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
an Obligor; (iib) make any loans or advances to the Borrower an Obligor; or any Restricted Subsidiary; or
(iiic) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiaryan Obligor; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary an Obligor to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary an Obligor shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) . Notwithstanding anything contained herein, the following shall not prohibitbe prohibited by this Section 7.08:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or the documents governing the Senior Notes or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Signing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiaryan Obligor, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary an Obligor in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower an Obligor or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary an Obligor or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor CompanyBorrower, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary an Obligor when such Person becomes the Successor CompanyBorrower;
(v3) 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 agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement;
contract; (Bb) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary an Obligor permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Dc) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiaryan Obligor;
(vi4) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsAgreement, in each case, that impose encumbrances or restrictions on the property so acquiredacquired or any encumbrance;
(vii5) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii6) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(ix7) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 8) 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 or consistent with past practicebusiness;
(xi9) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii10) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facilityand that apply to such Securitization Subsidiary;
(xiv11) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Signing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in this Agreement, together with the Loan Documents or the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Signing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (ai) the Borrower determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations Indebtedness, including the Senior Notes, or (bii) such encumbrance or restriction applies only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such agreement or instrumentIndebtedness;
(xv12) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof7.01; or
(xvi13) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to or (xv2) of this Section 7.08(b) paragraph or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to or (xv2) of this Section 7.08(b) paragraph or this clause (xvi13); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 2 contracts
Sources: Credit Agreement (Igate Corp), Credit Agreement (Igate Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any its Restricted Subsidiary;
Subsidiaries, (ii) make any loans or advances to the Borrower or any its Restricted Subsidiary; or
Subsidiaries or (iii) sell, lease or transfer any of its property or assets to the Borrower or any its Restricted Subsidiary; Subsidiaries (provided that (x) the dividend or liquidation priority between classes of Capital Stock, or subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit), except any encumbrance or restriction:
(ia) any encumbrance or restriction pursuant to any credit facility the Loan Documents, the Term Loan Documents or any other agreement or instrument, in each case, instrument in effect at or entered into on the Closing DateDate and set forth on Schedule 6.03;
(iib) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (other than Capital Stock or except to the extent that such Indebtedness Incurred as consideration inwas incurred to finance, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with with, such transaction) and outstanding on such dateacquisition, merger or consolidation); provided that, that for the purposes of this clause (ivb), if another a Person other than the Borrower is the Successor Companysurviving entity with respect to such merger or consolidation, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Borrower or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the Successor Companysuch surviving entity;
(vc) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (a) or (b) of this Section 6.03 or this clause (c) (an “Initial Agreement”) or contained in any encumbrance amendment, supplement or restriction:other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Lenders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Borrower);
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement;
contract, (B) contained in mortgagesby virtue of any transfer of, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower transfer, option or right with respect to, or Lien on, any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such any Restricted Subsidiary that are subject not otherwise prohibited by this Agreement, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to such agreement, the payment rights arising thereunder or extent restricting the proceeds thereof and does not extend to any other asset or property transfer of the Borrower property or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
, (viE) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Borrower or any Restricted Subsidiary in any manner material to the Borrower or such Restricted Subsidiary, or (I) pursuant to Hedging Agreements;
(viie) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viiif) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable Law, rule, regulation or order, or required by any regulatory authority;authority having jurisdiction over the Borrower or any Restricted Subsidiary or any of their businesses; or
(xg) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof6.01 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Borrower), or (bii) if such encumbrance or restriction is not materially more disadvantageous to the Lenders than is customary in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (ax) the Borrower determines at the time of entry into such agreement or instrument in good faith that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the Borrower’s ability to make principal or interest payments on the Secured Obligations Loans or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement Indebtedness or instrument;
(xvB) relating to any encumbrance or restriction existing sale of receivables by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIForeign Subsidiary.
Appears in 2 contracts
Sources: Abl Credit Agreement (Mattress Firm Group Inc.), Abl Credit Agreement (Mattress Firm Group Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Company, (ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; Company (provided that (x) neither the Transactions, nor dividend or liquidation priority between classes of Capital Stock, nor subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not obligation, will be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit), except any encumbrance or restriction:
(i1) any encumbrance or restriction pursuant to any credit facility an agreement, arrangement or any other agreement or instrument, in each case, instrument in effect at or entered into on the Closing Issue Date, any Credit Facility, this Indenture or the Notes;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration infrom such Person, or to provide all or any portion of the funds utilized to consummate, the other transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was Incurred to finance, or otherwise in connection with with, such acquisition, merger, consolidation or transaction) and outstanding on such date); provided that, that for the purposes of this clause (iv2), if another a Person other than the Company is the Successor CompanyCompany with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Borrower Company or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the such Successor Company;
(v3) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any encumbrance agreement or restriction:instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company, which determination shall be conclusive);
(4) (A) pursuant to any agreement or instrument that restricts in a customary manner (as determined in good faith by the Company, which determination shall be conclusive) the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset that is subject thereto, (B) by virtue of any transfer of, agreement to a leasetransfer, license option or similar contract or agreementright with respect to, or Lien on, any property or assets of the assignment Company or transfer of any leaseRestricted Subsidiary not otherwise prohibited by this Indenture, license or other contract or agreement;
(BC) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness or other obligations of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict restricting the transfer or encumbrance of the property or assets subject to such mortgagesthereto, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions (as determined in good faith by the Company, which determination shall be conclusive) restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
, (viE) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions (as determined in good faith by the Company, which determination shall be conclusive) contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, (I) pursuant to Hedging Obligations or Bank Products Obligations or (J) with respect to which the Company determines in good faith, which determination shall be conclusive, that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes;
(vii5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of (A) property or assets of such Restricted Subsidiary or (B) all or substantially all of the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) Subsidiary, in each case, pending the closing of such sale or disposition;
(viii6) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;
(x) authority having jurisdiction over the Company or any encumbrance Restricted Subsidiary or restriction on cash any of their businesses, including any such law, rule, regulation, order or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Qualified Securitization Financing Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;Home Warranty Subsidiary; or
(xiv7) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof407 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders of the Notes than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Company, which determination shall be conclusive), or (bii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the BorrowerCompany, which determination shall be conclusive) and where, in the case of clause (b), either (ax) the Borrower Company determines at the time of entry into such agreement or instrument in good faith, which determination shall be conclusive, that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement Indebtedness, (B) relating to any sale of receivables by or instrument;
Indebtedness of a Foreign Subsidiary or (xvC) any encumbrance relating to Indebtedness of or restriction existing a Financing Disposition by reason or to or in favor of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIISpecial Purpose Entity.
Appears in 2 contracts
Sources: Indenture (Frontdoor, Inc.), Indenture (Servicemaster Global Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company, UPC NL Holdco and an Affiliate Covenant Party will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary; provided that (xa) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (yb) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a4.08(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, in effect at or entered into on the Closing Signing Date, including, without limitation, this Agreement, the Covenant Agreement, the Existing Credit Agreement, the Existing Senior Secured Notes, the Intercreditor Agreement, the Security Documents and any related documentation, in each case, as in effect on the Signing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company, UPC NL Holdco or an Affiliate Covenant Party or was merged, merged or consolidated or otherwise combined with or into the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company, UPC NL Holdco, an Affiliate Covenant Party or any other Restricted Subsidiary other than the assets and property so acquired and provided, further, that for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in clause (1) or (2) of Section 4.08(b) or this clause (3) or contained in any amendment, supplement or other modification to an agreement referred to in clause (1) or (2) of Section 4.08(b) or this clause (3); provided, however, that the encumbrances and restrictions, taken as a whole, with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (1) or (2) of Section 4.08(b) (as determined in good faith by the Board of Directors or senior management of the Company);
(4) in the case of clause (3) of the first paragraph of this covenant, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary;
(vi5) any encumbrance or restriction pursuant to (a) Purchase Money Obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsAgreement, in each case, case that impose encumbrances or restrictions of the nature described in in Section 4.08(a)(3) on the property so acquired;
(vii6) any encumbrance or restriction arising in connection with any Purchase Money Note or 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, are necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder asset sale agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into by the Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in the ordinary course of business;
(ix9) 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;
(x10) 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 or consistent with past practicebusiness;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;Currency Agreements, Commodity Agreements or Interest Rate Agreements; and
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Signing Date pursuant to the provisions of Section 7.03 hereof4.09 if (a) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Finance Parties than (a) the encumbrances and restrictions contained in this Agreement, the Loan Documents or Covenant Agreement, the First-Priority Existing Credit Agreement, the Existing Senior Secured Note Notes, the Intercreditor Agreement, the Security Documents and any related documentation, in each case, as in effect on the Closing Signing Date (as determined in good faith by the Board of Directors or senior management of the Company, UPC NL Holdco or an Affiliate Covenant Party ) 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 in good faith by the BorrowerBoard of Directors or senior management of the Company, UPC NL Holdco or an Affiliate Covenant Party ) and whereand, in the case of clause (b)each case, either (ai) the Borrower determines at the time of entry into such agreement Company, UPC NL Holdco or instrument an Affiliate Covenant Party reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Proceeds Loan as and when they come due or (bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIIndebtedness.
Appears in 2 contracts
Sources: Additional Facility C Accession Deed (Liberty Global PLC), Additional Facility D Accession Deed (Liberty Global PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any its Restricted Subsidiary;
Subsidiaries, (ii) make any loans or advances to the Borrower or any its Restricted Subsidiary; or
Subsidiaries or (iii) sell, lease or transfer any of its property or assets to the Borrower or any its Restricted Subsidiary; Subsidiaries (provided that (x) the dividend or liquidation priority between classes of Capital Stock, or subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit), except any encumbrance or restriction:
(ia) any encumbrance or restriction pursuant to any credit facility the Loan Documents, the ABL Loan Documents or any other agreement or instrument, in each case, instrument in effect at or entered into on the Closing DateDate and set forth on Schedule 6.03;
(iib) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (other than Capital Stock or except to the extent that such Indebtedness Incurred as consideration inwas incurred to finance, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with with, such transaction) and outstanding on such dateacquisition, merger or consolidation); provided that, that for the purposes of this clause (ivb), if another a Person other than the Borrower is the Successor Companysurviving entity with respect to such merger or consolidation, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Borrower or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the Successor Companysuch surviving entity;
(vc) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (a) or (b) of this Section 6.03 or this clause (c) (an “Initial Agreement”) or contained in any encumbrance amendment, supplement or restriction:other modification to an Initial Agreement (an “ Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Lenders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Borrower);
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement;
contract, (B) contained in mortgagesby virtue of any transfer of, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower transfer, option or right with respect to, or Lien on, any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such any Restricted Subsidiary that are subject not otherwise prohibited by this Agreement, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to such agreement, the payment rights arising thereunder or extent restricting the proceeds thereof and does not extend to any other asset or property transfer of the Borrower property or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
, (viE) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Borrower or any Restricted Subsidiary in any manner material to the Borrower or such Restricted Subsidiary, or (I) pursuant to Hedging Agreements;
(viie) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viiif) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable Law, rule, regulation or order, or required by any regulatory authority;authority having jurisdiction over the Borrower or any Restricted Subsidiary or any of their businesses; or
(xg) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof6.01 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Borrower), or (bii) if such encumbrance or restriction is not materially more disadvantageous to the Lenders than is customary in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (ax) the Borrower determines at the time of entry into such agreement or instrument in good faith that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the Borrower’s ability to make principal or interest payments on the Secured Obligations Loans or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement Indebtedness or instrument;
(xvB) relating to any encumbrance or restriction existing sale of receivables by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIForeign Subsidiary.
Appears in 2 contracts
Sources: Credit Agreement (Mattress Firm Group Inc.), Credit Agreement (Mattress Firm Group Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Parent shall not, and shall not permit any Restricted Subsidiary to, to create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Parent or any Restricted Subsidiary;
(ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property Restricted Subsidiaries, or assets with respect to the Borrower any other interest or any Restricted Subsidiary; provided participation in, or measured by, its profits (it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(yii) make any loans or advances to the Parent or any Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Parent or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute make loans or advances); or
(iii) sell, lease or transfer any of its property or assets to the Parent or any Restricted Subsidiary (it being understood that such an encumbrance transfers shall not include any type of transfer described in clause (i) or restriction(ii) of this Section 3.6(a)).
(b) The restrictions in Section 7.08(a3.6(a) shall not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(i) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date, including, without limitation, this Indenture, the Notes and the Guarantees in effect on such date;
(ii) any encumbrance or restriction pursuant with respect to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance a Person or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction assets pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into in effect on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as became a Restricted Subsidiary or on which such agreement was acquired by, merged into or instrument is assumed by consolidated with the Borrower Parent or any a Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by, merged into or consolidated with the Parent or in contemplation of the transaction) or such assets were acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower Parent or any Restricted Subsidiary; provided, that any such encumbrance or restriction shall not extend to any Person or the assets or property of the Parent or any other Restricted Subsidiary other than the Person and its Subsidiaries or the assets and property so acquired and that, in the case of Indebtedness, was permitted to be Incurred pursuant to this Indenture;
(iii) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this Section 3.6(b) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, refunding, replacement or Refinancing of an agreement referred to in clause (i) or (ii) of this Section 3.6(b) or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable (as determined in Good Faith by the Parent) in any material respect, taken as a whole, to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clause (i) or (ii) of this Section 3.6(b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or entered was merged into or consolidated with a Restricted Subsidiary, whichever is applicable;
(iv) in contemplation the case of Section 3.6(a)(iii), encumbrances or restrictions arising in connection with Liens permitted to be Incurred under the provisions of Section 3.5 hereof that apply only to the assets subject to such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), 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 Borrower or any Restricted Subsidiary when such Person becomes the Successor CompanyLiens;
(v) purchase money obligations for property acquired and Capitalized Lease Obligations, in each case, that impose restrictions of the nature described in Section 3.6(a)(iii) on the property so acquired;
(vi) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Parent pursuant to an agreement that has been entered into for the sale or disposition of all or a portion of the Capital Stock or assets of such Subsidiary;
(vii) restrictions on cash or other deposits or net worth imposed by customers or lessors or required by insurance, surety or bonding companies under contracts entered into in the ordinary course of business;
(viii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Parent or any Restricted Subsidiary in the ordinary course of business;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, order, permit or grant, including for the avoidance of doubt, any encumbrance or restriction:
(A) that restricts in a customary manner restriction on any Insurance Subsidiary by any governmental authority having the subletting, assignment or transfer of any property or asset that is subject power to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreementregulate such Insurance Subsidiary;
(Bx) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer contained in or encumbrance of the property arising under indentures or assets subject to such mortgages, pledges, charges debt instruments or other security agreementsdebt arrangements Incurred or Preferred Stock issued by the Parent or any Restricted Subsidiary subsequent to the Issue Date pursuant to Section 3.3 hereof that are not more restrictive, taken as a whole (as determined in Good Faith by the Parent), than those applicable to the Parent in this Indenture on the Issue Date;
(Cxi) encumbrances or restrictions contained in or arising under indentures or other debt instruments or other debt arrangements Incurred or Preferred Stock issued by the Parent or any Subsidiary subsequent to the Issue Date pursuant to Section 3.3 hereof or contained or arising in connection with any Reinsurance Agreement or Statutory Reserve Financing or agreement entered into by an Insurance Subsidiary or Special Purpose Subsidiary; provided that such encumbrances and restrictions contained in any agreement or instrument will not materially adversely affect the Company’s ability to make anticipated principal or interest payments on the Notes or are otherwise customary for financings or arrangements of that type (in each case, as determined in Good Faith by the Parent);
(xii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale purchase or other agreement to which the Borrower Parent or any of its Restricted Subsidiaries is a party and entered into in the ordinary course of business or consistent with past practicebusiness; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Parent or such Restricted Subsidiary that are the subject to of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Parent or such Restricted Subsidiary or the assets or property of another any other Restricted Subsidiary; or.
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viiixiii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsagreements;
(ixxiv) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rulecustomary provisions contained in leases, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or licenses and other deposits or net worth imposed by customers under similar agreements entered into in the ordinary course of business or consistent with past practice;business; and
(xixv) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to governing any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions or Capital Stock of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents Person that is an Unrestricted Subsidiary as in effect on the Closing Date date that such Person becomes a Restricted Subsidiary, which encumbrance or (b) restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person who became a Restricted Subsidiary or the property or assets of the Person who became a Restricted Subsidiary, and was not entered into in comparable financings (contemplation of the designation of such Subsidiary as determined in good faith by the Borrower) and where, a Restricted Subsidiary; provided that in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respectIndebtedness, the Borrower’s ability to make principal or interest payments on incurrence of such Indebtedness as a result of such Person becoming a Restricted Subsidiary was permitted by the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) terms of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIIndenture.
Appears in 2 contracts
Sources: Indenture (F&G Annuities & Life, Inc.), Indenture (FGL Holdings)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
: (i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
; (ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
or (iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted SubsidiarySub- sidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends divi- dends or liquidating distributions being paid on common stock and (y) the subordination of (including the application applica- tion of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance en- cumbrance or restriction.
(b) The provisions of Section 7.08(a3.4
(a) shall not prohibit:
: (i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
; (ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
; (iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv3) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating re- lating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, amalgamated, 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 Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, amalgamated, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv3), if another Person is the Successor Company, any Subsidiary Subsidi- ary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor CompanyCompa- ny;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (Townsquare Media, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuers shall not, and the Issuers 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:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNotes Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or orderLaw;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or a Restricted Subsidiary or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor CompanyCompany (as defined below), any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Issuer or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Borrower Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerIssuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument (i) taken as a whole whole, are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the collateral or the First-Priority Senior Secured Note Documents other documents associated therewith, or this Indenture as in effect on the Closing Date or Issue Date, (bii) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will instrument, are determined by the Issuer in good faith to not adversely affect, in any material respect, the Borrower’s Issuers’ ability to make principal or interest payments on the Secured Obligations Notes or (biii) such encumbrance or restriction applies apply only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument (i) are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding Issuer) or (ii) are determined by the Issuer in good faith, at the time of entering into such refinancing, amendment, supplement or other modification, will not adversely affect, in any other provision to the contrarymaterial respect, the consummation of Issuers’ ability to make principal or interest payments on the Transactions shall not be prohibited by Article VIINotes.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(iA) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(iiB) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iiiC) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNote Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(Bb) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(Cc) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Dd) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (a) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi)clause; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (Infrastructure & Energy Alternatives, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) (x) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or (y) pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(aThe provisions of Section 3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or (b) any other agreement or instrumentinstrument (including the Existing Notes Documents), in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNotes Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bb) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Cc) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Dd) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of Capital Stock (including of all or substantially all the of Capital Stock Stock) or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in (i) leases, licenses, equityholder agreements, joint venture agreements, organizational documents documents, contracts and other similar agreements and instrumentsinstruments (including leases and licenses of intellectual property) and (ii) equityholders agreement, joint venture agreements, asset sale agreements, stock sale agreements, organizational or constitutive documents or other similar agreements relating to any joint venture or non-wholly owned Restricted Subsidiary and other similar agreements applicable to joint ventures and non-wholly owned Restricted Subsidiaries and applicable solely to such joint venture or non-wholly owned subsidiary and the Capital Stock issued thereby;
(ix9) encumbrances any encumbrance or restrictions restriction arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practicecustomers;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created any encumbrance or restriction of a Receivables Subsidiary effected in connection with any a Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable Financing; provided that such restrictions apply only to effect such Securitization Facility or Receivables FacilitySubsidiary;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bSection 3.4(b)(14)(ii), either (a) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof; orSection 3.6;
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi)clause; provided, however, 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 not materially more restrictive taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates relates;
(17) 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, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(18) any Permitted Investments;
(19) restrictions that are, taken as a whole, in the good faith judgment of the Company, no more restrictive with respect to the Company or any Restricted Subsidiary than customary market terms for Indebtedness of such type (and, in any event, are no more restrictive than the restrictions contained in the Indenture), or that the Company shall have determined in good faith will not affect its obligation or ability to make any payments required under this Indenture;
(20) contracts or agreements for the sale of assets, including customary restrictions (A) 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 (B) restricting assignment of any agreement entered into in the ordinary course of business, (C) constituting restrictions on cash or other deposits imposed by customers under contracts entered into in the Borrower). Notwithstanding ordinary course of business and (D) which apply by reason of any other provision to applicable law, rule, regulation or order or are required by any Governmental Authority having jurisdiction over the contraryCompany or any Restricted Subsidiary; or
(21) any encumbrances or restrictions imposed by any amendments, the consummation modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the Transactions shall contracts, instruments or obligations referred to in Section 3.4(b)(1) through Section 3.4(b)(20); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not be prohibited by Article VIImaterially more restrictive as a whole with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary (other than 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:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, (ii) the Existing Notes or (iii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date (or otherwise required as of the Issue Date);
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or such agreement or instrument was entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and or Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) 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 or consistent with past practicepractices;
(xi10) any encumbrance or restriction pursuant to Hedging Obligations;
(xii11) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Existing Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv13) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi14) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, restates, replaces, restructures or refinances, an agreement or instrument referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14) (an “Initial Agreement”) or contained in any amendment, supplement supplement, extension, renewal, restatement, replacement, restructuring or other modification to an agreement referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no not materially less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (Cott Corp /Cn/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Company, (ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; Company (provided that (x) the dividend or liquidation priority between classes of Capital Stock, or subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit), except any encumbrance or restriction:
(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 Closing Issue Date, including, without limitation, this Indenture, the Notes, the Senior Credit Facility or any other Credit Facility;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (other than Capital Stock or except to the extent that such Indebtedness Incurred as consideration inwas incurred to finance, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with with, such transaction) and outstanding on such dateacquisition, merger or consolidation); provided that, that for the purposes of this clause (iv2), if another a Person other than the Company is the Successor CompanyCompany with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Borrower Company or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the such Successor Company;
(v3) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any encumbrance amendment, supplement or restriction:other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement;
contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict restricting the transfer or encumbrance of the property or assets subject to such mortgagesthereto, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) 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;
, (viE) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, (I) pursuant to Hedging Obligations or (J) in connection with or relating to any Vehicle Rental Concession Right;
(vii5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii6) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(x7) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof407 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders of the Notes than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Company), or (bii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (b), either (ax) the Borrower Company determines at the time of entry into such agreement or instrument in good faith that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary, (C) of or instrument;
(xv) any encumbrance relating to Indebtedness of or restriction existing a Financing Disposition by reason or to or in favor of any Lien permitted under Section 7.01 hereof; or
Special Purpose Entity or (xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xvD) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) a financing arrangement of this Section 7.08(b) or this clause (xvi); provided, however, that a Special Purpose Entity organized outside the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIUnited States.
Appears in 1 contract
Sources: Indenture (Cendant Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any of its Restricted Subsidiary Subsidiaries to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any of its Restricted SubsidiarySubsidiaries;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock or other common equity interests and (y) the subordination of (including the application of any standstill requirements to) loans loans, advances or advances any other obligation made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements (including stockholder agreements) and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent arising in connection with past practiceany Permitted Liens;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, Company are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (aA) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower Company determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s Issuers’ ability to make principal or interest payments on the Secured Obligations or Notes, (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement Indebtedness or instrument(C) such encumbrances or restrictions are not materially more disadvantageous, taken as a whole, to the holders of the Notes than is customary in comparable financings for similarly situated issuers;
(xv15) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (Trinseo S.A.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Parent Guarantor or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Parent Guarantor or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Parent Guarantor or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Parent Guarantor or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents and Notes, the Security Documents, the ABL Notes Intercreditor Agreement or the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent Guarantor or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Parent Guarantor or was merged, consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor CompanyParent Guarantor, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Parent Guarantor or any Restricted Subsidiary when such Person becomes the Successor CompanyParent Guarantor;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Parent Guarantor or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) ; contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Parent Guarantor or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Parent Guarantor or such Restricted Subsidiary that are the subject to of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Parent Guarantor or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Parent Guarantor or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Parent Guarantor or any Restricted Subsidiary (or the property or assets that are subject to such restriction) not prohibited by the Indenture pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerParent Guarantor, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents ABL Credit Agreement (as in effect on the Closing Issue Date), together with the security documents associated therewith as in effect on the Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerParent Guarantor) and where, in the case of clause (bclause(ii), either (aA) the Borrower Parent Guarantor determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerParent Guarantor). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (BMC Stock Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Parent shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (ix) pay dividends or make any other distributions in cash or otherwise 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;
, (iiy) make any loans or advances to the Borrower Parent or any Restricted Subsidiary or (z) transfer any of its Property to Parent or any Restricted Subsidiary; or, except:
(iii1) sell, lease or transfer any of its property or assets with respect to the Borrower or any Restricted Subsidiary; provided that clauses (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and ), (y) the subordination of and (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 shall not be deemed to constitute such an encumbrance or restriction.z):
(b) Section 7.08(a) shall not prohibit:
(iA) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance , including the 2024 Notes Indenture, or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(ivB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by Parent and outstanding on such date;
(C) any encumbrance or restriction pursuant to applicable law and other customary conditions and restrictions contained in any agreement, document or instrument relating to the formation, operation and regulatory requirements or limitations related to a Captive Insurance Subsidiary;
(D) contracts or agreements for the sale of Property, including any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or instrument disposition of a Person the Capital Stock or Property of such Restricted Subsidiary;
(E) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(F) any limitation or prohibition on the disposition or distribution of Property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements, which limitation or prohibition is customary for such agreements;
(G) restrictions contained in any Qualified Receivables Transaction with respect to any Receivables Entity;
(H) customary provisions contained in leases, licenses and other similar agreements entered into in the ordinary course of business or consistent with past practice or industry norm;
(I) any encumbrance or restriction arising in the ordinary course of business, not relating to any Capital Indebtedness, that does not, individually or in the aggregate, materially detract from the value of the Property of Parent and the Restricted Subsidiaries, taken as whole, or adversely affect the Issuer’s ability to make principal and interest payments on the Notes, in each case, as determined in good faith by Parent or the Issuer;
(J) secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.09 that limit the right of the debtor to dispose of the Property securing such Indebtedness;
(K) other Indebtedness, Disqualified Stock or Indebtedness Preferred Stock (i) of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock that is a Subsidiary Guarantor or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Foreign Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or (ii) of any Restricted Subsidiary that is not a Subsidiary Guarantor or entered into a Foreign Subsidiary so long as such encumbrances and restrictions contained in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person 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 such Subsidiary shall be deemed acquired or assumed Guarantor’s ability to satisfy its obligations under its Note Guarantee (as determined in good faith by the Borrower Issuer), provided that in the case of each of subclauses (i) and (ii), such Indebtedness, Disqualified Stock or any Restricted Subsidiary when such Person becomes Preferred Stock is permitted to be Incurred subsequent to the Successor Company;Issue Date pursuant to Section 4.03; and
(vL) any encumbrance encumbrances or restrictionrestrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (A) through (K) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of Parent, not materially 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.
(2) with respect to clause (z) 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 agreementcontract, or the assignment or transfer of any such lease, license (including, without limitation, licenses of intellectual property) or other contract or agreement;contract; and
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement (i) purchase money obligations for Property acquired and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(viii) any encumbrance or restriction pursuant to contained in Capital Lease Obligations, any agreement governing Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndebtedness, in each case, that impose encumbrances security agreements or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to mortgages securing Indebtedness of a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) extent such encumbrance or restriction applies only during restricts the continuance transfer of a default in respect of a payment relating the Property subject to such agreement Capital Lease Obligations, Purchase Money Indebtedness, security agreements or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIImortgages.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Iridium shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash to Iridium or otherwise any Restricted Subsidiary on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, (ii) pay any Indebtedness or other obligations owed to the Borrower Iridium or any Restricted Subsidiary;
, (iiiii) make any loans or advances to the Borrower Iridium or any Restricted Subsidiary; or
Subsidiary or (iiiiv) sell, lease or transfer any of its property or assets to the Borrower Iridium or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit, except:
(i) 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;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv1) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to the Guaranteed Bank Facility or any Capital Stock other agreement in effect at or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryIssue Date, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), 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 Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for this Indenture or the direct Series B Notes, the Series A Indenture or indirect sale the Series A Notes (or disposition similar limitations pursuant to a Person of all other notes issued by Iridium, or indentures relating thereto, that are substantially all the Capital Stock or assets of the Borrower similar 57 49 to those set forth in this Indenture), or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent agreement relating to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Secured Bank Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi2) any encumbrance or restriction pursuant to an agreement relating to any Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries;
(3) any encumbrance or restriction pursuant to (x) an agreement or instrument effecting a refinancing of pursuant to which Indebtedness which Refinances Indebtedness Incurred pursuant to, to an agreement referred to in clause (1) or that otherwise refinances, (2) or this clause (3) is Incurred or contained in any amendment to an agreement or instrument referred to in clauses clause (i1) to or (xv) of this Section 7.08(b2) or this clause (xvi3), or (y) Indebtedness Incurred pursuant to clause (an “Initial Agreement”i), (ii) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xviii) of this paragraph (b) of Section 7.08(b) or this clause (xvi)4.03; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement refinancing agreement, instrument or instrument are amendment referred to in clause (x) above are, taken as a whole, no less favorable more restrictive in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates predecessor agreements (as determined by the chief financial officer of Iridium in good faith and evidenced by a certificate filed with the BorrowerTrustee). Notwithstanding ;
(4) any other provision encumbrance or restriction contained in security agreements or mortgages securing Indebtedness, or under any documents providing for Capital Lease Obligations, of a Restricted Subsidiary which are not prohibited by Section 4.12 herein to the contrary, extent such encumbrances or restrictions restrict the consummation assignment or transfer of the Transactions property or assets subject to such security agreements or mortgages, or subject to such Capital Lease Obligations;
(5) any encumbrance or restriction existing under or by reason of applicable law or regulations;
(6) customary non-assignment provisions of any licensing agreement or of any lease but only to the extent such provisions restrict the transfer of the license, lease or the property thereunder;
(7) any encumbrance or restriction contained in contracts for sales of assets otherwise permitted by this Indenture;
(8) with respect to a Restricted Subsidiary, any encumbrance or restriction imposed pursuant to an agreement that has been entered into for the sale of all or substantially all of the Capital Stock of such Restricted Subsidiary; provided, however, that after giving effect to such transaction no Default shall have occurred or be continuing, that such restriction terminates if such transaction is not be prohibited by Article VIIconsummated and 58 50 that such consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into;
(9) any encumbrance or restriction, with respect to a Restricted Subsidiary that is not a Restricted Subsidiary on the date of this Indenture, in existence at the time such Person becomes a Restricted Subsidiary and not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary; and
(10) any restriction on the sale or other disposition of assets or property securing Indebtedness as a result of a Permitted Lien on such assets or property.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNote Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), 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 Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Af) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bg) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ch) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Issuer or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerIssuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of clause (bii), either (aA) the Borrower Issuer determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company, UPC NL Holdco and an Affiliate Covenant Party will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary; provided that (xa) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (yb) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a4.08(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, in effect at or entered into on the Closing Signing Date;
(ii) any encumbrance or restriction pursuant to , including, without limitation, this Agreement, the Collateral Existing Credit Agreement, the Existing Senior Secured Notes, the Intercreditor Agreement, the Security Documents and any related documentation, in each case, as in effect on the Guarantees;Signing Date; 59836545_7
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company, UPC NL Holdco or an Affiliate Covenant Party or was merged, merged or consolidated or otherwise combined with or into the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company, UPC NL Holdco, an Affiliate Covenant Party or any other Restricted Subsidiary other than the assets and property so acquired and provided, further, that for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in clause (1) or (2) of Section 4.08(b) or this clause (3) or contained in any amendment, supplement or other modification to an agreement referred to in clause (1) or (2) of Section 4.08(b) or this clause (3); provided, however, that the encumbrances and restrictions, taken as a whole, with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (1) or (2) of Section 4.08(b) (as determined in good faith by the Board of Directors or senior management of the Company);
(4) in the case of clause (3) of the first paragraph of this covenant, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions 59836545_7 restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary;
(vi5) any encumbrance or restriction pursuant to (a) Purchase Money Obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsAgreement, in each case, case that impose encumbrances or restrictions of the nature described in in Section 4.08(a)(3) on the property so acquired;
(vii6) any encumbrance or restriction arising in connection with any Purchase Money Note or 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, are necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder asset sale agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into by the Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in the ordinary course of business;
(ix9) 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;
(x10) 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 or consistent with past practicebusiness;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;Currency Agreements, Commodity Agreements or Interest Rate Agreements; and
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Signing Date pursuant to the provisions of Section 7.03 hereof4.09 if (a) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Finance Parties than (a) the encumbrances and restrictions contained in this Agreement, the Loan Documents or Existing Credit 59836545_7 Agreement, the First-Priority Existing Senior Secured Note Notes, the Intercreditor Agreement, the Security Documents and any related documentation, in each case, as in effect on the Closing Signing Date (as determined in good faith by the Board of Directors or senior management of the Company, UPC NL Holdco, or an Affiliate Covenant Party) 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 in good faith by the BorrowerBoard of Directors or senior management of the Company, UPC NL Holdco, or an Affiliate Covenant Party) and whereand, in the case of clause (b)each case, either (ai) the Borrower determines at the time of entry into such agreement Company, UPC NL Holdco, or instrument an Affiliate Covenant Party reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Facilities as and when they come due or (bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIIndebtedness.
Appears in 1 contract
Sources: Additional Facility C2 Accession Deed (Liberty Global PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its their Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its their property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNote Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor CompanyCompany (as defined below), any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Note Documents or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Note Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practicepractice or industry norms; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Div) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Note Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practicepractice or industry norms;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions restrictions, taken as a whole, contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (a) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to through (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to through (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(aClause (a) shall above will not prohibit:
(i) any encumbrance or restriction pursuant to (A) any credit facility Credit Facility (including the Credit Documents) or (B) any other agreement or instrument, in each case, in effect at or entered into on the Original Closing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this sub-clause (ivii), 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xviiii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses sub-clause (i) to or (xvii) of this Section 7.08(b) above or this sub-clause (xviiii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses sub-clause (i) to or (xvii) of this Section 7.08(b) above or this sub-clause (xviiii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(iv) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Agreement to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(v) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(ix) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(x) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(xi) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to Section 10.1 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (A) the encumbrances and restrictions contained in this Agreement, together with the Security Documents associated therewith as in effect on the Closing Date or (B) in comparable financings (as determined in good faith by the Company) and where, in the case of clause (B), the consummation Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Transactions shall not be prohibited Borrowers’ ability to make principal or interest payments on the Loans or Unpaid Drawings;
(xii) [Reserved]; or
(xiii) any encumbrance or restriction existing by Article VIIreason of any Lien permitted under Section 10.3.
Appears in 1 contract
Sources: Secured Revolving Credit Agreement (NXP Semiconductors N.V.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary (other than the Issuer and the Affiliate 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 (other than the Issuer and the Affiliate Subsidiaries) to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (y) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a4.08(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date, including, without limitation, this Indenture, the Existing Senior Secured Notes Indentures, the Existing Senior Notes Indentures, the Senior Credit Facility, the Intercreditor Deeds, the Security Documents and any related documentation, in each case, as in effect on the Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, merged or consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and provided, further, that for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in clause (1) or (2) of this Section 4.08(b) or this clause (3) or contained in any amendment, supplement or other modification to an agreement referred to in clause (1) or (2) of this Section 4.08(b) or this clause (3); provided, however, that the encumbrances and restrictions, taken as a whole, with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (1) or (2) of this Section 4.08(b) (as determined in good faith by the Board of Directors or senior management of the Company);
(4) in the case of Section 4.08(a)(3), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Agreement and the Collateral Documents or Indenture securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) 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;
(vi5) any encumbrance or restriction pursuant to (A) Purchase Money Obligations for property acquired in the ordinary course of business and (B) Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, case that impose encumbrances or restrictions of the nature described in Section 4.08(a)(3) on the property so acquired;
(vii6) any encumbrance or restriction arising in connection with 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, are necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder asset sale agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(ix9) 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;
(x10) 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 or consistent with past practicebusiness;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;Currency Agreements, Commodity Agreements or Interest Rate Agreements; and
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof4.09 if (A) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained in the Loan Documents or Senior Credit Facility, the First-Priority Existing Senior Secured Note Documents Notes Indentures and the Group Intercreditor Deed, in each case, as in effect on the Closing Issue Date (as determined in good faith by the Board of Directors or senior management of the Company) or (bB) such encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the BorrowerBoard of Directors or senior management of the Company) and whereand, in the case of clause (b)each case, either (ai) the Borrower determines at the time of entry into such agreement or instrument Company reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes as and when they come due or (bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIIndebtedness.
Appears in 1 contract
Sources: Indenture (Liberty Global PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Parent Guarantor shall not, and shall not permit any Restricted Subsidiary (that is not the Company) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations Obligations owed to the Borrower Parent Guarantor or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Parent Guarantor or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Parent Guarantor or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Parent Guarantor or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(aSECTION 3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility, (b) the Existing Secured Notes, (c) the Senior Notes or (d) any other agreement or instrument, in each case, in effect at or entered into on or prior to the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreementthe Note Documents, the Collateral Documents and the GuaranteesIntercreditor Agreements;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, amalgamated, consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent Guarantor or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Parent Guarantor or was merged, amalgamated, consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date, which encumbrance or restriction only applies to the Person so acquired and its Subsidiaries (or their respective property or assets) or the property or assets so acquired; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Parent Guarantor or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement Indenture and the Collateral Documents or securing Indebtedness of the Borrower Parent Guarantor or a Restricted Subsidiary permitted under this Agreement Indenture and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(Ciii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Parent Guarantor or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Parent Guarantor or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Parent Guarantor or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Div) pursuant to customary provisions restricting dispositions of real property Real Property interests set forth in any reciprocal easement agreements of the Borrower Parent Guarantor or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement Indenture and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Parent Guarantor or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Swap Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 SECTION 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerParent Guarantor, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) 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 the provisions of Section 7.03 hereof) SECTION 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, the ABL Credit Agreement, any indenture governing a series of Existing Secured Notes or the First-Priority indenture governing the Senior Secured Note Documents Notes, in each case, together with the security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerParent Guarantor) and where, in the case of clause (bii), either (a) the Borrower Parent Guarantor determines in good faith at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal principal, premium (if applicable) or interest payments on the Secured Obligations Notes or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereofSECTION 3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(bSECTION 3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(bSECTION 3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerParent Guarantor). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (iHeartMedia, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Holdings will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Holdings, (ii) make any loans or advances to the Borrower Holdings or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; provided that Holdings, except (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit:
(i) 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;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iva) any encumbrance or restriction pursuant to an agreement in effect at or instrument entered into on the date of this Indenture (including, without limitation, the Credit Agreement and the Senior Subordinated Notes); (b) any encumbrance or restriction imposed by Indebtedness incurred under the Credit Agreement in accordance with this Indenture, provided, however that such encumbrance or restriction is not materially more restrictive than that imposed by the Credit Agreement as of the Issue Date; (c) any encumbrance or restriction with respect to a Person or Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness of Incurred by a Person, entered into Restricted Subsidiary on or before prior to the date on which such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets Holdings (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionHoldings) and outstanding on such date; provided that, for the purposes of this clause (iv), 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 Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(vd) any encumbrance or restriction:
restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (a), (b) or (c) of this covenant or this clause (d) or contained in any amendment to an agreement referred to in clause (a) (b) or (c) of this covenant or this clause (d); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or amendment are not materially more restrictive than encumbrances and restrictions contained in such agreements; (e) in the case of clause (iii) above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreement;
contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of Holdings or any Restricted Subsidiary not otherwise prohibited by this Indenture (including any Permitted Lien), (C) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances encumbrance or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale agreements or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) 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;
; (vif) any encumbrance restriction with respect to a Restricted Subsidiary (or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances any of its property or restrictions on the property so acquired;
(viiassets) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
; (viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ixg) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rulelaw; (h) restrictions on transfer contained in Purchase Money Indebtedness incurred pursuant to paragraph (b)(vii) of Section 3.3 of this Indenture, regulation or order, or required by any regulatory authority;
provided such restrictions relate only to the transfer of the property 49 43 acquired with the proceeds of such Purchase Money Indebtedness and (xi) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness the Senior Subordinated Note Indenture and the Senior Subordinated Notes of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIINebraska Book.
Appears in 1 contract
Sources: Indenture (NBC Acquisition Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) 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;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a4.07(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility 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);
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees[Reserved];
(3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the New Senior Secured Notes Indenture, the New Senior Secured Notes and the guarantees thereof, (iii) the Existing Senior Notes, Existing Senior Notes Indentures and the guarantees thereof, (iv) the New Senior Notes Indenture, the New Senior Notes and the guarantees thereof, (v) the Holdco Notes Indenture, the Holdco Notes and the guarantees thereof, (vi) the Existing Credit Agreement and the guarantees thereof, and (vii) the Intercreditor Agreement and any encumbrance Additional Intercreditor Agreement, including in each case, any related security documents, escrow arrangements or restriction pursuant other documents related to applicable law, rule, regulation or orderthe foregoing;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which (ii) such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a Restricted Subsidiary in each case, other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionSubsidiary) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.07(b)(4), if another Person is the Successor CompanyCompany or any Subsidiary thereof, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi5) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise refinancesextends, renews, refunds, refinances or replaces an agreement or instrument referred to in clauses (iSection 4.07(b)(1), Section 4.07(b)(3) to (xv) of this or Section 7.08(b4.07(b)(4) or this clause (xviSection 4.07(b)(5) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (iSection 4.07(b)(1), Section 4.07(b)(3) to (xv) of this or Section 7.08(b4.07(b)(4) or this clause (xviSection 4.07(b)(5); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding ;
(6) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Agreement or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Agreement to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements;
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary; or
(d) pursuant to the terms of any license, authorization, concession or permit;
(7) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(8) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(9) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation, governmental license or order, or required by any regulatory authority or stock exchange;
(11) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(12) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(13) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the 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 the Existing Credit Agreement on the Closing Date, together with the security documents associated therewith, if any, and the Intercreditor Agreement, 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 consummation 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 Transactions shall not be prohibited Company, are necessary or advisable to effect such Qualified Receivables Financing; or
(15) any encumbrance or restriction existing by Article VIIreason 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 Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(iA) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(iiB) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iiiC) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) the New Revolving Credit Facility, (b) the Notes, any credit facility Additional Notes and the Note Guarantees, (c) the Intercreditor Agreement and any Additional Intercreditor Agreement, (d) the Security Documents or (e) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements, debt purchase agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, the consummation terms of any license, authorization, concession or permit or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the New Revolving Credit Facility, together with the security documents associated therewith as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of this clause (ii), the Company determines at the time such Indebtedness is Incurred 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;
(12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Transactions shall not be prohibited Board of Directors of the Company, are necessary or advisable;
(13) any encumbrance or restriction existing by Article VIIreason of any lien permitted under Section 4.12;
(14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions in Section 4.08(b); provided that the terms and conditions of any such encumbrances or restrictions are, in the good faith judgment of the Board of Directors of the Company, no more restrictive in any material respect than those under or pursuant to the agreement so extended, renewed, refinanced or replaced.
Appears in 1 contract
Sources: Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall not, and shall not permit any Restricted Subsidiary to, create Create 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 (ia) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
; (iib) make any loans or advances to the Borrower or any Restricted Subsidiary; or
or (iiic) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) . Notwithstanding anything contained herein, the following shall not prohibitbe prohibited by this Section 7.09:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or the documents governing the Senior Notes or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor CompanyBorrower, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor CompanyBorrower;
(v3) 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 agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement;
contract; (Bb) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Dc) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi4) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsAgreement, in each case, that impose encumbrances or restrictions on the property so acquiredacquired or any encumbrance;
(vii5) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii6) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(ix7) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 8) 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 or consistent with past practicebusiness;
(xi9) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii10) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facilityand that apply to such Securitization Subsidiary;
(xiv11) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in this Agreement, together with the Loan Documents or the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (ai) the Borrower determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations Indebtedness, including the Senior Notes, or (bii) such encumbrance or restriction applies only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such agreement or instrumentIndebtedness;
(xv12) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof7.01; or
(xvi13) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to or (xv2) of this Section 7.08(b) paragraph or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to or (xv2) of this Section 7.08(b) paragraph or this clause (xvi13); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Credit Agreement (Igate Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability right of any Restricted Subsidiary to:
(ia) pay dividends dividends, in cash or otherwise, or make any other distributions on or in cash or otherwise on respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Borrower Issuer or any other Restricted Subsidiary;Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(iib) make any loans or advances to the Borrower Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Issuer or any Restricted Subsidiary; Subsidiary to other Debt Incurred by the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances), or
(iiic) sell, lease or transfer any of its property or assets Property to the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any other Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary (it being understood that such transfers shall not be deemed to constitute such an encumbrance include any type of transfer described in clause (a) or restriction.
(b) Section 7.08(a) shall above). The foregoing limitations will not prohibitapply to restrictions:
(i) 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 Effective Date, including, but not limited to the Credit Agreement;
(ii) any encumbrance relating to Debt of a Restricted Subsidiary existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or restriction in anticipation of the transaction or series of transactions pursuant to this Agreement, which that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Collateral Documents and the GuaranteesIssuer;
(iii) that result from any encumbrance amendment, restatement, modification, renewal, supplement, extension, replacement or restriction Refinancing of Debt Incurred pursuant to an agreement referred to in clause (i) or (ii) above, in clause (vi), (vii) or (x) below or this clause (iii), provided that the restriction contained in such amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially more restrictive (as determined in good faith by the Issuer’s Board of Directors), taken as a whole, than the restrictions of the same type contained in the agreements or instruments referred to in clauses (i), (ii), (vi), (vii) or (xi) or this clause (iii), as applicable;
(iv) resulting from the Incurrence of any Permitted Debt as defined in Section 4.04, provided that the restriction is no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Issuer’s Board of Directors) than the restrictions of the same type contained in this Indenture;
(v) existing by reason of applicable law, rule, regulation or order;
(ivvi) any encumbrance or restriction with respect to clause (c) above only, relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to an agreement or instrument Section 4.04 and Section 4.06 that limit the right of a Person or relating the debtor to any Capital Stock or Indebtedness dispose of a Person, entered into on or before the date on which such Person Property securing that Debt;
(vii) encumbering Property at the time the Property was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or so long as the restriction relates solely to the Property so acquired and was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary not created in connection with an acquisition of assets (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 Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), 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 Borrower or any Restricted Subsidiary when such Person becomes the Successor Companyacquisition;
(vviii) any encumbrance resulting from customary provisions restricting subletting or restriction:
assignment of leases or customary provisions in other agreements (A) that restricts in a customary manner the sublettingincluding, assignment or transfer of any without limitation, intellectual property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party licenses entered into in the ordinary course of business or consistent with past practice; provided business) that such agreement prohibits the encumbrance of solely the property or assets restrict assignment of the Borrower agreements or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instrumentsthereunder;
(ix) encumbrances or which are customary restrictions arising or existing by reason contained in asset sale agreements limiting the transfer of applicable law or any applicable rule, regulation or order, or required by any regulatory authorityProperty pending the closing of the sale;
(x) existing pursuant to any encumbrance Debt Incurred by a Foreign Subsidiary, which restrictions are customary for a financing of such type, and which are otherwise permitted under this Indenture, provided, however, that the Issuer’s Board of Directors determines in good faith that such restrictions are not reasonably likely to impair the Issuer’s ability to make principal and interest payments on the Notes; or
(xi) existing by reason of this Indenture, the Notes offered hereby, and the Note Guarantees;
(xii) with respect to the disposition or restriction distribution of assets or property in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(xiii) on cash or other deposits or net worth imposed by customers under agreements contracts entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facilitybusiness;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of the provision described in clause (b)c) of the first paragraph of this covenant; arising or agreed to in the ordinary course of business, either (a) not relating to any Debt, and that do not, individually or in the Borrower determines at aggregate, detract from the time value of entry into such agreement property or instrument that such encumbrances assets of the Issuer or restrictions will not adversely affect, any Restricted Subsidiary thereof in any manner material respect, to the Borrower’s ability to make principal Issuer or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentany Restricted Subsidiary thereof;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereofcontained in Hedging Obligations; orand
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and constituting customary restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect a Securitization Subsidiary, pursuant to the Lenders taken as terms of a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIPermitted Receivables Financing.
Appears in 1 contract
Sources: Indenture (Energizer Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(iA) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(iiB) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iiiC) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility (a) the Senior Facilities Agreement or (b) any other agreement or instrumentinstrument (including the Existing Notes Indenture), in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements, and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of this clause (ii), the consummation Company determines at the time such Indebtedness is Incurred 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 or the ability of Cabot UK Financial to make principal or interest payments on the Proceeds Loan;
(12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Transactions shall not be prohibited Board of Directors of the Company, are necessary or advisable; or
(13) any encumbrance or restriction existing by Article VIIreason of any lien permitted under Section 4.12.
Appears in 1 contract
Sources: Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries.
(a) The Borrower shall Issuer will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary, or with respect to any other interest or participation in, or measured by, its profits;
(ii) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.,
(b) Section 7.08(a4.04(a) shall will not prohibit:
(i) any encumbrance or restriction pursuant to (A) any credit facility Credit Facility (other than the Revolving Credit Facility) or any other agreement or instrument, in each case, in effect at or entered into on the Closing Date;Issue Date or (B) this Indenture, the Notes, the Intercreditor Agreement, the Revolving Credit Facility, the Security Documents or any security documents related to any of the foregoing;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionSubsidiary) and outstanding on such date; provided that, for the purposes of this clause (ivii), if another Person is the Successor CompanyIssuer, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;Issuer;
(viii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in Section 4.04(b)(i), Section 4.04(b)(ii) or this Section 4.04(b)(iii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.04(b)(i), Section 4.04(b)(ii) or this Section 4.04(b)(iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument, amendment, supplement or other modification are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Board of Directors or an Officer of the Issuer);
(iv) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledgescharges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledgescharges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) 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;
(viv) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired, constructed, improved, leased, rented or installed or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the distribution or transfer of the assets or Capital Stock of the joint venture;
(viivi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viiivii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(ixviii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(xix) 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 or consistent with past practicebusiness;
(xix) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging ObligationsAgreements;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xivxi) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof4.01 if (I) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders of the Notes than (ax) the encumbrances and restrictions contained in the Loan Documents or Revolving Credit Facility, together with the First-Priority Senior Secured Note Documents security documents associated therewith, and the Intercreditor Agreement, in each case, as in effect on the Closing Issue Date or (by) as is customary in comparable financings (as determined in good faith by the BorrowerBoard of Directors or an Officer of the Issuer) and where, in the case of clause or (b), either (aII) the Borrower Issuer determines in good faith at the time of entry into such agreement or instrument Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentconstituting an Additional Intercreditor Agreement;
(xvxii) restrictions effected in connection with a Qualified Receivables Financing that, in the good faith determination of the Board of Directors or an Officer of the Issuer, are necessary or advisable to effect such Qualified Receivables Financing; and
(xiii) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII4.03.
Appears in 1 contract
Sources: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Parent will not, and shall will not permit the Issuer or any other 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:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Parent, the Issuer or any other Restricted Subsidiary, or with respect to any other interest or participation in, or measured by, its profits;
(ii) make any loans or advances to the Borrower Parent, the Issuer or any other Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower Parent, the Issuer or any other Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.,
(b) The provisions of Section 7.08(a4.04(a) shall will not prohibit:
(i) any encumbrance or restriction pursuant to or arising from (a) any credit facility Credit Facility (including the Term Facilities and the Revolving Credit Facility), (b) the Intercreditor Agreement or any Additional Intercreditor Agreement, (c) this Indenture, (d) any other agreement or instrumentinstrument of the Parent, in each case, the Issuer or any other Restricted Subsidiary as of the Issue Date that is in effect at on or was entered into on the Closing DateIssue Date or in connection with the Transactions, or (e) any other agreement or instrument that is necessary or advisable (as determined in good faith by the Parent’s Board of Directors or a member of Senior Management) to consummate the Transactions;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Parent, the Issuer or any other Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent, the Issuer or any other Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration infor, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Parent or was merged, consolidated or otherwise combined with or into the Borrower Parent, the Issuer or any other Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), if another Person is the resulting, surviving or transferee Person following such merger, consolidation or combination (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 Borrower Parent, the Issuer or any other Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xviiii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses clause (i) to or (xvii) of this Section 7.08(b4.04(b) or this clause (xviSection 4.04(b)(iii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses clause (i) to or (xvii) of this Section 7.08(b4.04(b) or this clause (xviSection 4.04(b)(iii); provided, however, that (a) the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation Parent’s Board of the Transactions shall not be prohibited by Article VII.Directors or a member of Senior Management) or
Appears in 1 contract
Sources: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Issuer or any Restricted SubsidiarySubsidiary that is a Guarantor; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted SubsidiarySubsidiary that is a Guarantor; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv3) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, amalgamated, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, amalgamated, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v4) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) 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;
(vi5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii6) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii7) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(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;
(x9) 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 or consistent with past practice;
(xi10) any encumbrance or restriction pursuant to Hedging Obligations;
(xii11) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii12) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility[reserved];
(xiv13) any encumbrance or restriction arising pursuant to an agreement or instrument (relating which if it relates to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof3.2) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole (i) are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (aA) the Borrower Issuer determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv14) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi15) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv14) of this Section 7.08(b3.4(b) or this clause (xvi15) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv14) of this Section 7.08(b3.4(b) or this clause (xvi15); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) (x) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or (y) pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(aThe provisions of Section 3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNotes Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bb) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Cc) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Dd) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of Capital Stock (including of all or substantially all the of Capital Stock Stock) or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents documents, contracts and other similar agreements and instrumentsinstruments (including leases and licenses of intellectual property) and equityholders agreement, joint venture agreements, asset sale agreements, stock sale agreements, organizational or constitutive documents or other similar agreements relating to any joint venture or non-wholly owned Restricted Subsidiary and other similar agreements applicable to joint ventures and non-wholly owned Restricted Subsidiaries and applicable solely to such joint venture or non-wholly owned subsidiary and the Capital Stock issued thereby;
(ix9) encumbrances any encumbrance or restrictions restriction arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practicecustomers;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created any encumbrance or restriction of a Receivables Subsidiary effected in connection with any a Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable Financing; provided that such restrictions apply only to effect such Securitization Facility or Receivables FacilitySubsidiary;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bSection 3.4(b)(14)(ii), either (a) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof; orSection 3.6;
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi)clause; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders not materially more restrictive taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates relates;
(17) 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, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(18) any Permitted Investments;
(19) restrictions that are, taken as a whole, in the good faith judgment of the Company, no more restrictive with respect to the Company or any Restricted Subsidiary than customary market terms for Indebtedness of such type (and, in any event, are no more restrictive than the restrictions contained in the Indenture), or that the Company shall have determined in good faith will not affect its obligation or ability to make any payments required under this Indenture;
(20) contracts or agreements for the sale of assets, including customary restrictions (A) 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 (B) restricting assignment of any agreement entered into in the ordinary course of business, (C) constituting restrictions on cash or other deposits imposed by customers under contracts entered into in the Borrower). Notwithstanding ordinary course of business and (D) which apply by reason of any other provision to applicable law, rule, regulation or order or are required by any Governmental Authority having jurisdiction over the contraryCompany or any Restricted Subsidiary; or
(21) any encumbrances or restrictions imposed by any amendments, the consummation modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the Transactions shall contracts, instruments or obligations referred to in Section 3.4(b)(1) through Section 3.4(b)(20); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not be prohibited by Article VIImaterially more restrictive as a whole with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company, UPC NL Holdco and an Affiliate Covenant Party will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary; provided that (xa) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (yb) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a4.08(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, in effect at or entered into on the Closing Signing Date, including, without limitation, this Agreement, the Covenant Agreement, the Existing Credit Agreement, the Existing Senior Secured Notes, the Intercreditor Agreement, the Security Documents and any related documentation, in each case, as in effect on the Signing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company, UPC NL Holdco or an Affiliate Covenant Party or was merged, merged or consolidated or otherwise combined with or into the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company, UPC NL Holdco, an Affiliate Covenant Party or any other Restricted Subsidiary other than the assets and property so acquired and provided, further, that for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument 59836545_7 of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in clause (1) or (2) of Section 4.08(b) or this clause (3) or contained in any amendment, supplement or other modification to an agreement referred to in clause (1) or (2) of Section 4.08(b) or this clause (3); provided, however, that the encumbrances and restrictions, taken as a whole, with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (1) or (2) of Section 4.08(b) (as determined in good faith by the Board of Directors or senior management of the Company);
(4) in the case of clause (3) of the first paragraph of this covenant, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary;
(vi5) any encumbrance or restriction pursuant to (a) Purchase Money Obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsAgreement, in each case, case that impose encumbrances or restrictions of the nature described in in Section 4.08(a)(3) on the property so acquired;
(vii6) any encumbrance or restriction arising in connection with any Purchase Money Note or 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, are necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets 59836545_7 of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder asset sale agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into by the Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in the ordinary course of business;
(ix9) 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;
(x10) 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 or consistent with past practicebusiness;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;Currency Agreements, Commodity Agreements or Interest Rate Agreements; and
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Signing Date pursuant to the provisions of Section 7.03 hereof4.09 if (a) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Finance Parties than (a) the encumbrances and restrictions contained in this Agreement, the Loan Documents or Covenant Agreement, the First-Priority Existing Credit Agreement, the Existing Senior Secured Note Notes, the Intercreditor Agreement, the Security Documents and any related documentation, in each case, as in effect on the Closing Signing Date (as determined in good faith by the Board of Directors or senior management of the Company, UPC NL Holdco or an Affiliate Covenant Party ) 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 in good faith by the BorrowerBoard of Directors or senior management of the Company, UPC NL Holdco or an Affiliate Covenant Party ) and whereand, in the case of clause (b)each case, either (ai) the Borrower determines at the time of entry into such agreement Company, UPC NL Holdco or instrument an Affiliate Covenant Party reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Proceeds Loan as and when they come due or (bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIIndebtedness.
Appears in 1 contract
Sources: Additional Facility C2 Accession Deed (Liberty Global PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, (ii) the Existing Notes, including any Guarantee thereof or (iii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement and the Existing Notes Indentures, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bclause(ii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNote Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor CompanyCompany (as defined below), any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Note Documents or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Note Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practicepractice or industry norms; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Div) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Note Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practicepractice or industry norms;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions restrictions, taken as a whole, contained in the Loan Documents Credit Agreement or the First-Priority Existing Senior Secured Notes Indenture, together with the security documents associated therewith, or the Note Documents as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (a) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to through (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to through (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Parent Guarantor or any Restricted Subsidiary;
(ii) make any loans or advances to the Borrower Parent Guarantor or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower Parent Guarantor or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Parent Guarantor or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.12(a) shall will not prohibit:
(i) any encumbrance or restriction pursuant to (1) any credit facility Credit Facilities or (2) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order, or required by any regulatory authority;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent Guarantor or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Parent Guarantor or the Company or was merged, consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor CompanyCompany or Successor Parent Guarantor, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Parent Guarantor or any Restricted Subsidiary when such Person becomes the Successor CompanyCompany or Successor Parent Guarantor, as applicable;
(v) any encumbrance or restriction:
(A) restriction that restricts in a customary manner (a) the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
agreement or (Bb) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Parent Guarantor or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Parent Guarantor or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents Joint Venture agreements and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practicebusiness;
(xix) any encumbrance or restriction pursuant to Hedging Obligations;
(xiixi) any encumbrance or restriction existing under or by reason of (a) Indebtedness or other Indebtedness contractual requirements of Foreign Subsidiaries permitted an SPV Subsidiary or any Standard Secured Financing Undertaking, in each case in connection with a Permitted Secured Financing; provided that such restrictions apply only to be Incurred such, or issued subsequent to a related, SPV Subsidiary and Financeable Assets and Cash and Cash Equivalents held by such, or a related, SPV Subsidiary; (b) restrictions on the Closing Date transfer of any Financeable Asset pending the close of any Permitted Secured Financing; or (c) restrictions on distributions pursuant to an SPV Subsidiary’s Permitted Secured Financing or other contractual obligations binding on such SPV Subsidiary or its assets (provided that such contractual obligations were not entered into in connection with, or in contemplation of such Permitted Secured Financing or hindering or prohibiting such distribution other than for a bona fide business purpose (as determined by the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their SubsidiariesParent Guarantor in good faith));
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xivxii) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 4.09 if the encumbrances and restrictions contained in any such agreement or instrument instrument, taken as a whole whole, are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the BorrowerParent Guarantor) and where, in the case of clause (b), where either (a) the Borrower Parent Guarantor determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xvxiii) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof4.11; or
(xvixiv) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i), (ii) to and (xviv) through (xiii) of this Section 7.08(b4.12(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, extension, renewal, restatement, refunding, replacement, refinancing, supplement or other modification to an agreement referred to in clauses (i), (ii) to and (xviv) through (xiii) of this Section 7.08(b4.12(b) or this clause (xvixiv); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders, taken as a whole whole, than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerParent Guarantor). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (Pagaya Technologies Ltd.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
Subsidiary (ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(y2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restriction.advances); or
(b3) Section 7.08(a) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers shall not prohibitinclude any type of transfer described in clause (1) or (2) above). The preceding provisions will not prohibit encumbrances or restrictions existing under or by reason of:
(i) any encumbrance contractual encumbrances or restriction restrictions pursuant to any credit facility or any the Senior Credit Facility and related documentation and other agreement or instrument, in each case, agreements in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Securities, the Exchange Securities and the Subsidiary Guarantees;
(iii) any agreement or other instrument of a Person acquired by the Company or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction pursuant is not applicable to applicable lawany Person, ruleor the properties or assets of any Person, regulation other than the Person and its Subsidiaries, or orderthe property or assets of the Person and its Subsidiaries, so acquired (including after acquired property);
(iv) any encumbrance amendment, restatement, modification, renewal, supplement, refunding, replacement or restriction pursuant to refinancing of an agreement referred to in clauses (i), (ii), (iii) of this paragraph or instrument this clause (iv); provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive, taken as a Person whole, than the encumbrances and restrictions contained the agreements referred to in clauses (i), (ii) or relating to any Capital Stock (iii) of this paragraph on the Issue Date or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was mergedmerged into a Restricted Subsidiary, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), if another Person whichever is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Companyapplicable;
(v) in the case of Section 3.4(3), any encumbrance encumbrance, lien or restriction:
(A) , Liens permitted to be Incurred pursuant to Section 3.6 that restricts in a customary manner limit the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness right of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents debtor to the extent such encumbrances or restrictions restrict the transfer or encumbrance dispose of the property or assets subject to securing such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted SubsidiaryIndebtedness;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations purchase money obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, Indenture that impose encumbrances or restrictions of the nature described in Section 3.4(3) on the property so acquired;
(vii) any encumbrance Purchase Money Note or restriction imposed other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Company or the relevant Restricted Subsidiary, as applicable, are necessary to effect such Qualified Receivables Transaction;
(viii) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the direct or indirect sale or disposition to a Person of all or substantially all a portion of the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositionSubsidiary;
(viiiix) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(x) any customary provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business;
(xi) any customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents subleases or license and other similar agreements and instrumentsentered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(ixxii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created agreements, encumbrances or restrictions, including agreements and instruments governing debt arrangements Incurred or Preferred Stock issued by Subsidiary Guarantors in connection accordance with any Qualified Securitization Financing or Receivables Facility thatSection 3.2 that are either (A) not more restrictive, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are whole, than those applicable to the Company in either this Indenture or the Senior Credit Facility on the Issue Date (which results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level) or (B) will not materially less favorable affect the Issuers’ ability to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents make anticipated principal or the First-Priority Senior Secured Note Documents as in effect interest payments on the Closing Date or (b) in comparable financings Securities (as determined in good faith by the Borrower) and where, in the case of clause (bCompany), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;; and
(xvxiv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or instrument effecting a refinancing disposition of Indebtedness Incurred pursuant to, all or that otherwise refinances, an agreement substantially all the Capital Stock or instrument referred to in clauses (i) to (xv) assets of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any pending the closing of such agreement sale or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIdisposition.
Appears in 1 contract
Sources: Indenture (Colt Finance Corp.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Borrower, (ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or Borrower, except any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, instrument in effect at or entered into on the Closing DateIssue Date (including, without limitation, the Credit Agreement), the Indenture or the Notes;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (other than Capital Stock or except to the extent that such Indebtedness Incurred as consideration inwas incurred to finance, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with with, such transaction) and outstanding on such date; acquisition, merger or consolidation), provided that, that for the purposes of this clause (iv2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Borrower or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the Successor Company;
(v3) pursuant to an agreement or instrument (a "Refinancing Agreement") effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this covenant or this clause (3) (an "Initial Agreement") or contained in any encumbrance amendment, supplement or restriction:other modification to an Initial Agreement (an "Amendment"); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment are not materially less favorable to the Holders of the Notes taken as a whole than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Borrower);
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement;
contract, (B) contained in mortgagesby virtue of any transfer of, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower transfer, option or right with respect to, or Lien on, any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such any Restricted Subsidiary that are subject not otherwise prohibited by the Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to such agreement, the payment rights arising thereunder or extent restricting the proceeds thereof and does not extend to any other asset or property transfer of the Borrower property or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
, (viE) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint ventures and other similar agreements entered into in the ordinary course of business), or (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Borrower or any Restricted Subsidiary in any manner material to the Borrower or such Restricted Subsidiary;
(vii5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii6) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing required by reason of applicable law or any applicable law, rule, regulation or order, order or required by any regulatory authority;authority having jurisdiction over the Borrower or any Restricted Subsidiary or any of their business; or
(x7) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of
Section I.1 of Section 7.03 hereof) this Schedule if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during will not cause the continuance Borrower not to have the funds necessary to pay the principal of a default in respect of a payment or interest on the Notes, (B) relating to such agreement any sale of receivables by a Foreign Subsidiary or instrument;
(xvC) relating to Indebtedness of or a Financing Disposition to or by any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIReceivables Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Issuers will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuers or any Restricted Subsidiary, or with respect to any other interest or participation in, or measured by, its profits;
(ii) make any loans or advances to the Borrower Issuers or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower Issuers or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Parent or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.04(a) shall will not prohibit:
(i) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility (including the Secured Credit Facility) or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Parent or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Parent or was merged, consolidated or otherwise combined with or into the Borrower Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.04(b)(ii), if another Person is the Successor CompanyCompany (as defined in Section 5.01(a)(i)), any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xviiii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b4.04(b)(i), Section 4.04(b)(ii) or this clause (xviSection 4.04(b)(iii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b4.04(b)(i), Section 4.04(b)(ii) or this clause (xviSection 4.04(b)(iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerBoard of Directors or an Officer of the Parent). Notwithstanding ;
(iv) any encumbrance or restriction:
A. that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
B. contained in mortgages, charges, pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Parent or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, charges, 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 Parent or any Restricted Subsidiary;
(v) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired, or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the distribution or transfer of the assets or Capital Stock of the joint venture;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(ix) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(x) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements, Commodity Hedging Agreements or in connection with any Qualified Securitization Financing;
(xi) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.01 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 Secured Credit Facility, together with the security documents associated therewith, in each case, as in effect on the Issue Date or (ii) as is customary in comparable financings (as determined in good faith by the Board of Directors or an Officer of the Parent) or where the Parent determines that such encumbrance or restriction will not adversely affect, in any material respect, the consummation Issuers’ ability to make principal or interest payments on the Notes; or
(xii) any encumbrance or restriction existing by reason of the Transactions shall not be prohibited by Article VIIany lien permitted under Section 4.03.
Appears in 1 contract
Sources: Indenture (Ferroglobe PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Borrower, (ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; (provided that (x) the dividend or liquidation priority between classes of Capital Stock, or subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit), except any encumbrance or restriction:
(i) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, instrument in effect at or entered into on the Closing Date, any Credit Facility or any Required Interim Loan Refinancing;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (other than Capital Stock or except to the extent that such Indebtedness Incurred as consideration inwas incurred to finance, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with with, such transaction) and outstanding on such dateacquisition, merger or consolidation); provided that, that for the purposes of this clause (ivii), if another a Person other than the Borrower is the Successor CompanyCompany with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Borrower or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the such Successor Company;
(viii) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (i) or (ii) of this subsection 7.7 or this clause (iii) (an “Initial Agreement”) or contained in any encumbrance amendment, supplement or restriction:other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Lenders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Borrower);
(iv) (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement;
contract, (B) contained in mortgagesby virtue of any transfer of, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower transfer, option or right with respect to, or Lien on, any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such any Restricted Subsidiary that are subject not otherwise prohibited by this Agreement, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to such agreement, the payment rights arising thereunder or extent restricting the proceeds thereof and does not extend to any other asset or property transfer of the Borrower property or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
, (viE) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Borrower or any Restricted Subsidiary in any manner material to the Borrower or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(viiv) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viiivi) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;
(x) authority having jurisdiction over the Borrower or any encumbrance Restricted Subsidiary or restriction on cash any of their businesses, including any such law, rule, regulation, order or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Qualified Securitization Financing Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;Home Warranty Subsidiary; or
(xivvii) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereofsubsection 7.1, (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Borrower), or (bii) if such encumbrance or restriction is not materially more disadvantageous to the Lenders than is customary in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (ax) the Borrower determines at the time of entry into such agreement or instrument in good faith that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the Borrower’s ability to make principal or interest payments on the Secured Obligations Loans or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement Indebtedness, (B) relating to any sale of receivables by or instrument;
Indebtedness of a Foreign Subsidiary or (xvC) any encumbrance relating to Indebtedness of or restriction existing a Financing Disposition by reason or to or in favor of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIISpecial Purpose Entity.
Appears in 1 contract
Sources: Senior Interim Loan Credit Agreement (Servicemaster Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNote Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements agreements, organizational documents and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreements, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Date Issue Date, or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b) paragraph or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b) paragraph or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (Owens & Minor Inc/Va/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary (other than 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:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date (or otherwise required as of the Issue Date);
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or such agreement or instrument was entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and or Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) 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 or consistent with past practicepractices;
(xi10) any encumbrance or restriction pursuant to Hedging Obligations;
(xii11) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv13) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi14) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, restates, replaces, restructures or refinances, an agreement or instrument referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14) (an “Initial Agreement”) or contained in any amendment, supplement supplement, extension, renewal, restatement, replacement, restructuring or other modification to an agreement referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no not materially less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (Cott Corp /Cn/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(aClause (a) shall above will not prohibit:
(i) any encumbrance or restriction pursuant to (A) any credit facility Credit Facility (including the Credit Documents) or (B) any other agreement or instrument, in each case, in effect at or entered into on the Closing Signing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause subclause (ivii), 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xviiii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses sub-clause (i) to or (xvii) of this Section 7.08(b) above or this sub-clause (xviiii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses sub-clause (i) to or (xvii) of this Section 7.08(b) above or this sub-clause (xviiii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(iv) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Agreement to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(v) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(ix) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(x) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(xi) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Signing Date pursuant to Section 10.1 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (A) the encumbrances and restrictions contained in this Agreement, together with the Security Documents associated therewith as in effect on the Signing Date or (B) in comparable financings (as determined in good faith by the Company) and where, in the case of paragraph (B), the consummation Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Transactions shall not be prohibited Borrowers’ ability to make principal or interest payments on the Loans or Unpaid Drawings;
(xii) [Reserved]; or
(xiii) any encumbrance or restriction existing by Article VIIreason of any Lien permitted under Section 10.3.
Appears in 1 contract
Sources: Secured Term Credit Agreement (NXP Semiconductors N.V.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
(ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit:
(i) 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;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees; order;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;or
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), 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 Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Credit Agreement (Frontier Communications Parent, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Issuer will not, and shall will not permit any Restricted Subsidiary that is not a Guarantor to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(i1) pay dividends or make any other distributions to the Issuer or any of its Restricted Subsidiaries that is a Guarantor in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries that is a Guarantor;
(ii2) make any loans or advances to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries that is a Guarantor; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries that is a Guarantor; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any of its Restricted Subsidiary Subsidiaries to other Indebtedness Incurred by the Borrower Issuer or any of its Restricted Subsidiary Subsidiaries shall not be deemed not to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit:
(i) 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;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), 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 Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (Surgery Partners, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(iA) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(iiB) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iiiC) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility (a) the Senior Facilities Agreement or (b) any other agreement or instrumentinstrument (including the Existing Notes Indentures), in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such the Company or any Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements, debt purchase agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, the consummation terms of any license, authorization, concession or permit or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09 if (a) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) as is customary in comparable financings (as determined in good faith by the Company)or (b) the Company determines at the time such Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes or the ability of Cabot (Treasury) Ireland to make principal or interest payments on the Proceeds Loan;
(12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Transactions shall not be prohibited Board of Directors of the Company, are necessary or advisable;
(13) any encumbrance or restriction existing by Article VIIreason of any lien permitted under Section 4.12;
(14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions under Section SECTION 4.11. (b) provided that the terms and conditions of any such encumbrances or restrictions are, in the good faith judgment of the Board of Directors of the Company, no more restrictive in any material respect than those under or pursuant to the agreement so extended, renewed, refinanced or replaced.
Appears in 1 contract
Sources: Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of the Section 7.08(a4.08(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility (including the Senior Finance Documents and Bridge Finance Documents) or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or Company was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv2), 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses clause (i1) to or (xv2) of this Section 7.08(b) paragraph or this clause (xvi3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses clause (i1) to or (xv2) of this Section 7.08(b) paragraph or this clause (xvi3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Company or any Restricted Subsidiary to the contrary, extent such encumbrances or restrictions restrict the consummation transfer of the Transactions shall property subject to such mortgages, pledges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 4.05 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not be prohibited by Article VIImaterially less favorable to the Holders of the Loans and PIK Notes (if any) than the encumbrances and restrictions contained in the Senior Facilities Agreement and the Intercreditor Agreement, in each case, as in effect on the Closing Date; or
(12) restrictions effected in connection with a Qualified Receivables Financing that, in the good faith determination of the Board of Directors of the Company, are necessary or advisable to effect such Qualified Receivables Financing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Issuer and Holdings will not, and shall will not permit any Restricted Subsidiary to, to create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to Holdings, the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to Holdings, the Borrower Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to Holdings, the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to Holdings, the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4
(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, (ii) the Existing Notes or (iii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes, the Note Guarantees and the GuaranteesCollateral Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into Holdings, the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by Holdings, the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by Holdings or the Borrower Issuer or was merged, consolidated or otherwise combined with or into Holdings, the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), 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 Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement Indenture and the Collateral Documents or securing Indebtedness of Holdings, the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement Indenture and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement Indenture and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of Holdings, the Borrower Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, shareholder agreements, licenses, equityholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Escrow Release Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of Holdings or the BorrowerIssuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of clause (bii), either (aA) the Borrower Issuer determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (Infor, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(iA) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(iiB) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iiiC) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility (a) the Senior Facilities Agreement or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements, and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of this clause (ii), the consummation Company determines at the time such Indebtedness is Incurred 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 or the ability of Cabot UK Financial to make principal or interest payments on the Proceeds Loan;
(12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Transactions shall not be prohibited Board of Directors of the Company, are necessary or advisable; or
(13) any encumbrance or restriction existing by Article VIIreason of any lien permitted under Section 4.12.
Appears in 1 contract
Sources: Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(ia) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary;
Subsidiary (ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends dividends, or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(yb) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such an encumbrance transfers shall not include any type of transfer described in clause (a) or restriction.
(b) Section 7.08(a) shall not prohibitabove); except:
(i) any encumbrance or restriction (A) pursuant to any credit facility or any other an agreement or instrument, in each case, in effect at or entered into on the Closing Effective Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction pursuant with respect to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction a Restricted Subsidiary pursuant to an agreement or instrument of a Person or relating to any Capital Stock of or Indebtedness of a Person, entered into on or before Incurred by such Restricted Subsidiary prior to the date on which such Person Restricted Subsidiary was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any a Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transactionBorrower) and outstanding on such date; provided that, for the purposes of this clause (iv), 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 Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(viii) any encumbrance or restriction:restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgagesby virtue of any transfer of, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower transfer, option or right with respect to, any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such any Restricted Subsidiary that are not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such agreement, the payment rights arising thereunder security agreements or the proceeds thereof and does not extend to Equity Interests in the owner of such property or in any other asset or property Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
owner and (D) pursuant to customary ordinary course provisions restricting dispositions the assignability of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiarycontracts;
(viv) any encumbrance restriction with respect to a Restricted Subsidiary (or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances any of its property or restrictions on the property so acquired;
(viiassets) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viiivi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents subleases or licenses and other similar agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and instrumentsinterest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) encumbrances or restrictions arising or existing by reason customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of applicable law or any applicable rule, regulation or order, or required by any regulatory authoritybusiness;
(x) any encumbrance customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or restriction other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under agreements contracts entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligationsbusiness;
(xii) customary provisions in operating or other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the Closing Date pursuant to assets that are the provisions subject of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiariesthose agreements;
(xiii) restrictions created in connection with customary provisions restricting assignment of any Qualified Securitization Financing or Receivables Facility that, agreement entered into in the good faith determination ordinary course of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facilitybusiness; and;
(xiv) 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 the provisions created by operation of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIapplicable law.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Dutch Company and U.S. Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted SubsidiaryDutch Company and U.S. Company;
(ii2) make any loans or advances to the Borrower or any Restricted SubsidiaryDutch Company and U.S. Company; or
(iii3) sell, lease or transfer any of its property or assets to Dutch Company and U.S. Company, U.S. Company, the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.05(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (A) any credit facility or Credit Facility (including the SS Term Loan), this Indenture, the Notes and the Guarantees thereof, the Existing Notes Indenture, the Existing Notes and the Guarantees thereof, the Intercreditor Agreement, any Additional Intercreditor Agreement, the Security Documents, the Shareholder Loan and the other documents relating to the Transactions, (B) any other agreement agreement, amendment or instrument, in each case, in effect at or entered into on the Closing DateIssue Date or (C) the Escrow Agreement;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into Dutch Company, U.S. Company, the Borrower Issuer or any other Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by Dutch Company, U.S. Company, the Borrower Issuer or any other Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Dutch Company or was merged, consolidated or otherwise combined with or into Dutch Company, U.S. Company, the Borrower Issuer or any other Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.05(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 Dutch Company, U.S. Company, the Borrower Issuer or any other Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in Sections 4.05(b)(1), (2) or (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Sections 4.05(b)(1), (2) or (3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by Dutch Company);
(4) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(5) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of Dutch Company, U.S. Company, the Borrower Issuer or a any other Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of Dutch Company, U.S. Company, the Borrower Issuer or any other Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions 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;
(vii7) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) 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 or consistent with past practicebusiness;
(xi10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging ObligationsAgreements;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv11) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 4.06 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the SS Term Loan Documents or Agreement and the First-Priority Senior Secured Note Documents Intercreditor Agreement, together with the security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerDutch Company) and where, in the case of clause (b), either (a) the Borrower or where Dutch Company determines at the time of entry into when such agreement or instrument Indebtedness is Incurred that such encumbrances or restrictions will shall not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentNotes;
(xv12) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof4.09;
(13) restrictions effected in connection with a Qualified Receivables Financing that, in the good faith determination of the Board of Directors of Dutch Company, U.S. Company or any Parent Holding Company, are necessary or advisable to effect such Qualified Receivables Financing;
(14) restrictions arising or agreed to in the ordinary course of business, not relating to any Indebtedness, where Dutch Company determines that they will not, individually or in the aggregate, adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes; or
(xvi15) any encumbrance encumbrances or restriction pursuant to an agreement or instrument effecting a refinancing restrictions of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument the type referred to in clauses Sections 4.05(a)(1), (i2) to and (xv3) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of this Section 7.08(b) the contracts, instruments or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement obligations referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xviSections 4.05(b)(1)–(14); providedprovided that such amendments, howevermodifications, that restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the encumbrances and restrictions good faith judgment of Dutch Company, not materially more restrictive as a whole 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 dividend and other payment restrictions than the encumbrances and restrictions those contained in the Initial Agreement dividend or Initial Agreements other payment restrictions prior to which such refinancing or amendment, supplement modification, restatement, renewal, increase, supplement, refunding, replacement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIrefinancing.
Appears in 1 contract
Sources: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall From and after the Escrow Assumption, ARP will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower ARP or any Restricted Subsidiary;
Subsidiary (ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(yii) make any loans or advances to ARP or any Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower ARP or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower ARP or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
(iii) sell, lease or transfer any of its property or assets to ARP or any Restricted Subsidiary.
(b) Section 7.08(a) shall The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility or any other by reason of (a) an agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date, including the indenture governing the Existing Notes, and (b) this Indenture;
(ii2) any encumbrance or restriction with respect to a Person pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to by reason of an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of Incurred by a Person, entered into Person on or before the date on which such Person was acquired by ARP or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a another Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became was acquired by ARP or a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such the transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or that any such Subsidiary encumbrance or restriction shall be deemed acquired not extend to any assets or assumed by the Borrower property of ARP or any Restricted Subsidiary when such Person becomes other than the Successor Companyassets and property so acquired;
(v3) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of ARP and the Restricted Subsidiaries to realize the value of, property or assets of ARP or any Restricted Subsidiary in any manner material to ARP or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of ARP or any Restricted Subsidiary other than the assets and property so acquired;
(5) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if:
(a) either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Issuers determine that any such encumbrance or restriction will not materially affect the Issuers’ ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive; and
(b) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financing (as determined by the Company);
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5) or clause (12) of this paragraph (b) or this clause (6) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (5) or clause (12) of this paragraph (b) or this clause (6); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (1) through (5) or clause (12) of this paragraph (b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(7) in the case of Section 4.11(a)(iii), any encumbrance or restriction:
(Aa) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a leaselease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in oil and gas properties), license or similar contract or agreementcontract, or the assignment or transfer of any leasesuch lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in oil and gas properties), license or other contract or agreementcontract;
(Bb) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or arising from Permitted Liens securing Indebtedness of the Borrower ARP or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Dc) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower ARP or any Restricted Subsidiary;
(vid) restrictions on cash or other deposits imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(e) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business that solely affect the assets or property that is the subject of such agreements and provided that in the case of joint venture agreements such provisions solely affect assets or property of the joint venture; or
(f) any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction pursuant relates only to Purchase Money Obligations the property or assets so acquired and is not and was not created in anticipation of such acquisitions;
(a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions of the nature described in Section 4.11(a)(iii) on the property so acquired;
(vii9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii10) any customary provisions encumbrances or restrictions imposed pursuant to any agreement of the type described in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instrumentsthe definition of “Permitted Business Investment”;
(ix11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;; and
(x12) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into the Senior Secured Credit Agreement as in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination effect as of the BorrowerIssue Date, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are necessary or advisable no more restrictive with respect to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances dividend and other payment restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions those contained in the Loan Documents or the First-Priority Senior Secured Note Documents Credit Agreement as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIIssue Date.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Each of the Issuer and Holdings will not, and shall will not permit any Restricted Subsidiary to, to create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to Holdings, the Borrower Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to Holdings, the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to Holdings, the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into Holdings, the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by Holdings, the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by Holdings or the Borrower Issuer or was merged, consolidated or otherwise combined with or into Holdings, the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv2), if another Person is the Successor Company, any Subsidiary Subsidi-ary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of Holdings, the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of Holdings, the Borrower Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practicebusiness;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerHoldings, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of clause (bii), either (aA) the Borrower Issuer determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (Trisyn Group, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary (other than the Issuer or a Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, (ii) the Existing Notes or (iii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date (or otherwise required as of the Issue Date);
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or such agreement or instrument was entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Diii) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and or Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) 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 or consistent with past practicepractices;
(xi10) any encumbrance or restriction pursuant to Hedging Obligations;
(xii11) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Existing Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv13) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi14) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, restates, replaces, restructures or refinances, an agreement or instrument referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14) (an “Initial Agreement”) or contained in any amendment, supplement supplement, extension, renewal, restatement, replacement, restructuring or other modification to an agreement referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no not materially less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (Cott Corp /Cn/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility (a) the Senior Facilities Agreement or (b) any other agreement or instrumentinstrument (including the Existing Notes Indentures), in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to the Company or any Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company);
(4) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) 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;
(vi5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions 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;
(vii6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii7) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents debt purchase agreements and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(ix) 8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, the terms of any license, authorization, concession or permit or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging ObligationsAgreements;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv11) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof4.09 if (a) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Senior Facilities Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) as is customary in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause Company)or (b), either (a) the Borrower Company determines at the time of entry into such agreement or instrument Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or the ability of Cabot (bTreasury) such encumbrance Ireland to make principal or restriction applies only during interest payments on the continuance of a default in respect of a payment relating to such agreement or instrumentProceeds Loan;
(xv12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Board of Directors of the Company, are necessary or advisable;
(13) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof; or4.12;
(xvi14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to an the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or instrument effecting a refinancing of Indebtedness Incurred pursuant to, replaces the agreements containing the encumbrances or that otherwise refinances, an agreement or instrument referred to in clauses (irestrictions under Section 4.11(b) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, provided that the encumbrances terms and restrictions with respect to such Restricted Subsidiary contained in conditions of any such agreement encumbrances or instrument are restrictions are, in the good faith judgment of the Board of Directors of the Company, no less favorable more restrictive in any material respect than those under or pursuant to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement agreement so extended, renewed, refinanced or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIreplaced.
Appears in 1 contract
Sources: Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) 5.1 The Borrower Parent shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(ia) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Parent or any Restricted Subsidiary;
(iib) make any loans or advances to the Borrower Parent or any Restricted Subsidiary; or
(iiic) sell, lease or transfer any of its property or assets to the Borrower Parent or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Parent or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) 5.2 The provisions of Section 7.08(a) 4.1 shall not prohibit:
(ia) any encumbrance or restriction pursuant to any credit facility (i) this Agreement, (ii) the Stretch Facility Agreement, (iii) the Credit Agreement, (iv) the Existing Cabot Notes Indentures or the Existing Encore Notes Indentures, or (v) any other agreement or instrument, in each case, in effect at or entered into on the Closing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(ivb) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Parent or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower 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 utilised to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause paragraph (ivb), 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 Borrower Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvic) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses paragraphs (ia) to or (xvb) of this Section 7.08(b) 4.2 or this clause paragraph (xvic) (an “"Initial Agreement”") or contained in any amendment, supplement or other modification to an agreement referred to in clauses paragraphs (ia) to or (xvb) of this Section 7.08(b) 4.2 or this clause paragraph (xvic); provided, however, that the encumbrances and restrictions with respect to such the Parent or any Restricted Subsidiary contained in any such agreement or instrument are no less favorable favourable in any material respect to the Lenders holders of the Encore Private Placement Notes taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerParent). Notwithstanding ;
(d) any encumbrance or restriction:
(i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(ii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement or securing Indebtedness of the Parent or a Restricted Subsidiary permitted under this Agreement to the contrary, extent such encumbrances or restrictions restrict the consummation transfer of the Transactions shall not be prohibited by Article VII.property or assets subject to such mortgages, pledges, charges or other security agreements; or
(iii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent or any Restricted Subsidiary; (e) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalised Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
Appears in 1 contract
Sources: Senior Secured Note Purchase Agreement (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted SubsidiarySubsidiary that is a Guarantor;
(ii2) make any loans or advances to the Borrower Company or any Restricted SubsidiarySubsidiary that is a Guarantor; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted SubsidiarySubsidiary that is a Guarantor; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary that is a Guarantor to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary that is a Guarantor shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to or arising or existing by reason of applicable law, rule, regulation or order, or required by any regulatory authority;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired, any replacements of such property or assets and additions and accessions thereto, after-acquired property subject to such arrangement, the proceeds and the products thereof and customary security deposits in respect thereof and in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, subleases, licenses, equityholder sublicenses, shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Non-Guarantor Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Non-Guarantor Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement modification, restatement, renewal, increase, supplement, refunding, replacement, refinancing or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, modification, restatement, renewal, increase, supplement refunding, replacement, refinancing or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (Diversey Holdings, Ltd.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary (other than the Issuer or a Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date (or otherwise required as of the Issue Date);
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or such agreement or instrument was entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and or Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) 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 or consistent with past practicepractices;
(xi10) any encumbrance or restriction pursuant to Hedging Obligations;
(xii11) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or New Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv13) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi14) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, restates, replaces, restructures or refinances, an agreement or instrument referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14) (an “Initial Agreement”) or contained in any amendment, supplement supplement, extension, renewal, restatement, replacement, restructuring or other modification to an agreement referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no not materially less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (Cott Corp /Cn/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(iA) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(iiB) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iiiC) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility (a) the Senior Facilities Agreement or (b) any other agreement or instrumentinstrument (including the Existing Notes Indentures), in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such the Company or any Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements, debt purchase agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, the consummation terms of any license, authorization, concession or permit or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of this clause (ii), the Company determines at the time such Indebtedness is Incurred 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 or the ability of Holdings to make principal or interest payments on the Proceeds Loan;
(12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Transactions shall not be prohibited Board of Directors of the Company, are necessary or advisable;
(13) any encumbrance or restriction existing by Article VIIreason of any lien permitted under Section 4.12;
(14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions under Section SECTION 4.11. (b) provided that the terms and conditions of any such encumbrances or restrictions are, in the good faith judgment of the Board of Directors of the Company, no more restrictive in any material respect than those under or pursuant to the agreement so extended, renewed, refinanced or replaced.
Appears in 1 contract
Sources: Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Issuer will not, and shall will not permit any Restricted Subsidiary to, to create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.07
(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility or Credit Facility (including the Senior Term Facilities and the ABL Facility) and any security documents related thereto, (b) the Intercreditor Agreement and any Additional Intercreditor Agreement and (c) any other agreement or instrument, in each case, in effect at or entered into on or prior to the Acquisition Closing Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents Indenture and the Guaranteesany other Note Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance encumbrance, restriction or restrictioncondition:
(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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Issuer or any of its the Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) 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;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, licensing requirement or order, or required by any regulatory authority;
(x10) 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 or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii12) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerIssuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv13) any encumbrance or restriction arising pursuant to an agreement or instrument (a) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 4.08 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders (taken as a whole) than (ai) the encumbrances and restrictions contained in (A) the Loan Documents or the First-Priority Senior Secured Note Documents Facilities Agreements or this Indenture, together with any security documents associated therewith, and (B) the Intercreditor Agreement, in each case, as in effect on the Closing Issue Date (or the closing date of the respective Senior Secured Facilities Agreements (as applicable)) or (bii) as is customary in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of this sub-clause (bii), either (ax) the Borrower Issuer determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (by) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument, or (b) constituting an Additional Intercreditor Agreement;
(xv14) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof4.11; or
(xvi15) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (iSection 4.07(b)(1) to (xv) of this Section 7.08(b4.07(b)(14) or this clause (xvi15) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (iSection 4.07(b)(1) to (xv) of this Section 7.08(b4.07(b)(14) or this clause (xvi15); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
(ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii) sellprovided, 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 preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance or restriction.make distributions on Capital Stock;
(b2) Section 7.08(amake any loans or advances to the Company or any Restricted Subsidiary; or
(3) shall transfer any of its property or assets to the Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, in effect at or entered into on the Closing DateIssue Date (including, without limitation, this Indenture and the Senior Credit Agreement in effect on such date);
(ii) any encumbrance or restriction pursuant with respect to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction a Restricted Subsidiary pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), 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 Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing refinancing, renewal, increase, refunding, replacement, modification or supplement of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses clause (i) to (xv) of this Section 7.08(b) paragraph or this clause (xviii) or contained in any amendment to an agreement referred to in clause (i) of this paragraph or this clause (ii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument amendment taken as a whole are no less favorable in any material respect to the Lenders taken as a whole Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in clause (i) of this paragraph on the Initial Agreement Issue Date;
(iii) in the case of clause (3) of the first paragraph of this Section 3.7, any encumbrance or Initial Agreements restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any Property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the Property subject to such mortgages, pledges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(iv) purchase money obligations for Property acquired in the ordinary course of business that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.7 on the property so acquired;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition 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) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(vii) customary supermajority voting provisions and other customary provisions in joint venture agreements, corporate charters, bylaws, stockholder agreements and similar documents or agreements entered into in the ordinary course of business;
(viii) customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment”;
(ix) encumbrances or restrictions in instruments evidencing Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such refinancing Subsidiary was acquired by the Company; provided, however, that such encumbrances or amendmentrestrictions are not created, supplement incurred or assumed in connection with, or in contemplation of, such acquisition;
(x) Indebtedness permitted under this Indenture containing encumbrances or restrictions that taken as a whole are not materially more restrictive than the encumbrances and restrictions otherwise contained in this Indenture;
(xi) encumbrances or restrictions contained in Hedging Obligations or Commodity Agreements permitted from time to time under this Indenture;
(xii) Encumbrances securing Indebtedness otherwise permitted to be incurred under Section 3.6 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(xiii) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, stockholder agreements, asset sale agreements, sale leaseback agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;
(xiv) restrictions on cash or other modification relates deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xv) any Permitted Investment or any Permitted Lien;
(xvi) Refinancing Indebtedness, provided that the restrictions contained in the agreements governing such Refinancing Indebtedness are no more restrictive, taken as determined a whole, than those contained in good faith by the Borrower). Notwithstanding any other provision agreements governing the Indebtedness being refinanced; and
(xvii) provisions with respect to the contrarydisposition or distribution of assets or property in joint venture agreements or other similar agreements, including clawback, “make-well” or “keep-well” agreements, to maintain financial performance or results of operations of a joint venture entered into in the consummation ordinary course of the Transactions shall not be prohibited by Article VIIbusiness.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Issuer will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
: (i1) pay dividends or make any other distributions to the Issuer or any Restricted Subsidiary that is a Subsidiary Guarantor in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
Subsidiary that is a Subsidiary Guarantor; (ii2) Guarantor; or make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
Subsidiary that is a Subsidiary (iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted SubsidiarySubsidi-ary that is a Subsidiary Guarantor; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends divi-dends or liquidating distributions being paid on common stock and (y) the subordination of (including the application applica-tion of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary that is a Subsidiary Guarantor to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary that is a Subsidiary Guarantor shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a3.4(a) shall not prohibit:
: (i1) any encumbrance or restriction pursuant to (x) any credit facility Credit Facility (including the Credit Agreement), or (y) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date (or contractual encumbrances or restrictions with respect to the Transactions in effect on the Escrow Release Date;
); (ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Guarantees;
Note Guar-antees; (iii3) any encumbrance encumbrances or restriction pursuant to restrictions arising or existing by reason of applicable law, rule, regulation regula-tion or order;
, or required by any regulatory authority; (iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating re-lating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Re-stricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized uti-lized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another anoth-er Person is the Successor Companysuccessor entity, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
successor entity; (v5) 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 agreement, or the assignment assign-ment or transfer of any lease, license or other contract or agreement;; -76-
(Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance encum-brance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests inter-ests set forth in any reciprocal easement agreements of the Borrower Issuer or any Restricted Subsidiary;
; (vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
, any replacements of such property or assets and additions and accessions thereto, after-acquired property subject to such arrangement, the proceeds and the products thereof and customary security deposits in respect thereof and in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender; (vii7) any encumbrance or restriction imposed on the Capital Stock or assets of the Issuer or any Restricted Subsidiary pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the such Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
; (viii) 8) customary provisions in leases, subleases, licenses, equityholder sublicenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
; (ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable appli-cable rule, regulation or order, or required by any regulatory authority;
; (x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers cus-tomers under agreements entered into in the ordinary course of business or consistent with past practice;
; (xi11) any encumbrance or restriction pursuant to Hedging Obligations;
; (xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries Non-Guarantors permitted to be Incurred or issued subsequent to the Closing Escrow Release Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries Non-Guarantors party thereto or their Subsidiaries;
; (xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Receiv-▇▇▇▇▇ Facility that, in the good faith determination of the BorrowerIssuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
, as the case may be; (xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating which, if it relates to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent pur-suant to the Closing Date pursuant to the provisions of Section 7.03 hereof3.2) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole (i) are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Escrow Release Date or (b) in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of clause or (b), ii) either (aA) the Borrower Issuer determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will do not adversely affect, in any material respect, materially impair the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes as and when due (as determined in good faith by the Issuer) or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
; (xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
or (xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing refi-nancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.re--77-
Appears in 1 contract
Sources: Indenture (Diversey Holdings, Ltd.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Issuer will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any other Restricted Subsidiary, or with respect to any other interest or participation in, or measured by, its profits;
(ii) make any loans or advances to the Borrower Issuer or any other Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower Issuer or any other Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Parent or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.04(a) shall will not prohibit:
(i) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility, (b) the Intercreditor Agreement, the ABL Intercreditor Agreement or any Additional Intercreditor Agreement, (c) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date, (d) the indenture governing the Reinstated Notes or (e) the indenture governing the Existing Notes;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Parent or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Parent or was merged, consolidated or otherwise combined with or into the Borrower Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.04(b)(ii), if another Person is the Successor CompanyCompany (as defined in Section 5.01(a)(i)), any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xviiii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b4.04(b)(i), Section 4.04(b)(ii) or this clause (xviSection 4.04(b)(iii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b4.04(b)(i), Section 4.04(b)(ii) or this clause (xviSection 4.04(b)(iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerBoard of Directors or an Officer of the Parent). Notwithstanding ;
(iv) any encumbrance or restriction:
A. that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
B. contained in mortgages, charges, pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Parent or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, charges, 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 Parent or any Restricted Subsidiary;
(v) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired, or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the distribution or transfer of the assets or Capital Stock of the joint venture;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(ix) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(x) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements, Commodity Hedging Agreements or in connection with any Qualified Securitization Financing;
(xi) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.01 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 this Indenture and the Intercreditor Agreement, together with the Security Documents associated therewith, in each case, as in effect on the Issue Date, or the ABL Intercreditor Agreement or (ii) as is customary in comparable financings (as determined in good faith by the Board of Directors or an Officer of the Parent) or where the Parent determines that such encumbrance or restriction will not adversely affect, in any material respect, the consummation Issuer’s ability to make principal or interest payments on the Notes; or
(xii) any encumbrance or restriction existing by reason of the Transactions shall not be prohibited by Article VIIany lien permitted under Section 4.03.
Appears in 1 contract
Sources: Indenture (Ferroglobe PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(aClause (a) shall above will not prohibit:
(i) any encumbrance or restriction pursuant to (A) any credit facility Credit Facility (including the Credit Documents) or (B) any other agreement or instrument, in each case, in effect at or entered into on the Closing Signing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this sub-clause (ivii), 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xviiii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses sub-clause (i) to or (xvii) of this Section 7.08(b) above or this sub-clause (xviiii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses sub-clause (i) to or (xvii) of this Section 7.08(b) above or this sub-clause (xviiii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(iv) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Agreement to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(v) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(ix) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(x) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(xi) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Signing Date pursuant to Section 10.1 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (A) the encumbrances and restrictions contained in this Agreement, together with the Security Documents associated therewith as in effect on the Signing Date or (B) in comparable financings (as determined in good faith by the Company) and where, in the case of paragraph (B), the consummation Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Transactions shall not be prohibited Borrowers’ ability to make principal or interest payments on the Loans or Unpaid Drawings;
(xii) [Reserved]; or
(xiii) any encumbrance or restriction existing by Article VIIreason of any Lien permitted under Section 10.3.
Appears in 1 contract
Sources: Secured Term Credit Agreement (NXP Semiconductors N.V.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(iA) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(iiB) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iiiC) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (y) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall The provisions of the preceding paragraph will not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility, this Indenture, any Senior Notes, the Senior Indenture, any Senior Subordinated Notes, or any other agreement or instrument, in each case, instrument in effect at or entered into on the Closing Datedate of this Indenture;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, merged or 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 Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, merged or consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such the transaction) and outstanding on such date; , provided that, for the purposes of this clause (ivSection 4.9(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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Sections 4.9(b)(1) or (2) or this Section 4.9(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Sections 4.9(b)(1) or (2) or this Section 4.9(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the holders of the Senior Subordinated Notes taken as a whole than the encumbrances and restrictions contained in such agreements and instruments referred to in Sections 4.9(b)(1) or (2) (as determined in good faith by the Company);
(4) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreementcontract;
(B) (x) 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 or (y) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) 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;
(vi5) any encumbrance or restriction pursuant to (a) Purchase Money Obligations and (b) Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property or assets so acquired;
(vii6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii7) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(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;
(x9) 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 or consistent with past practicebusiness;
(xi10) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary;
(11) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Obligations;Agreements; or
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (a) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof4.3, (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders of the Senior Subordinated Notes than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Company), or (bii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Senior Subordinated Notes than is customary in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (b), either (ax) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the BorrowerCompany’s ability to (or to cause eircom Funding to) make principal or interest payments on the Secured Obligations Senior Subordinated Notes as and when they come due or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant toIndebtedness, or that otherwise refinances, an agreement (b) relating to any working capital Indebtedness or instrument referred sale of receivables by a Foreign Subsidiary or to in clauses (i) Indebtedness of or a Financing Disposition to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in by any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIReceivables Entity.
Appears in 1 contract
Sources: Senior Subordinated Indenture (Valentia Telecommunications)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Iridium shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash to Iridium or otherwise any Restricted Subsidiary on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, (ii) pay any Indebtedness or other obligations owed to the Borrower Iridium or any Restricted Subsidiary;
, (iiiii) make any loans or advances to the Borrower Iridium or any Restricted Subsidiary; or
Subsidiary or (iiiiv) sell, lease or transfer any of its property or assets to the Borrower Iridium or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit, except:
(i1) any encumbrance A Notes, the Series B Indenture or restriction the Series B Notes (or similar limitations pursuant to any credit facility other notes issued by Iridium, or indentures relating thereto, that are substantially similar to those set forth in this Indenture), or any other agreement or instrument, in each case, in effect at or entered into on relating to the Closing DateSecured Bank Facility;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock Acquired Indebtedness, which encumbrance or Indebtedness of a restriction is not applicable to any Person, entered into on or before the date on which such Person was acquired by properties or mergedassets of any Person, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was so acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), 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 Borrower or any Restricted Subsidiary when such Person becomes the Successor Companyits Subsidiaries;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi3) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances (x) an agreement or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed instrument pursuant to which Indebtedness which Refinances Indebtedness Incurred pursuant to an agreement entered into for the direct referred to in clause (1) or indirect sale (2) or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary this clause (or the property or assets that are subject to such restriction3) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be is Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable amendment to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses clause (i1) to or (xv) of this Section 7.08(b2) or this clause (xvi3), or (y) Indebtedness Incurred pursuant to clause (an “Initial Agreement”i), (ii) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xviii) of this paragraph (b) of Section 7.08(b) or this clause (xvi)4.03; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement refinancing agreement, instrument or instrument are amendment referred to in clause (x) above are, taken as a whole, no less favorable more restrictive in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates predecessor agreements (as determined by the chief financial officer of Iridium in good faith and evidenced by a certificate filed with the BorrowerTrustee). Notwithstanding ;
(4) any other provision encumbrance or restriction contained in security agreements or mortgages securing Indebtedness, or under any documents providing for Capital Lease Obligations, of a Restricted Subsidiary which are not prohibited by Section 4.12 herein to the contrary, extent such encumbrances or restrictions restrict the consummation assignment or transfer of the Transactions property or assets subject to such security agreements or mortgages, or subject to such Capital Lease Obligations;
(5) any encumbrance or restriction existing under or by reason of applicable law or regulations;
(6) customary non-assignment provisions of any licensing agreement or of any lease but only to the extent such provisions restrict the transfer of the license, lease or the property thereunder;
(7) any encumbrance or restriction contained in contracts for sales of assets otherwise permitted by this Indenture;
(8) with respect to a Restricted Subsidiary, any encumbrance or restriction imposed pursuant to an agreement that has been entered into for the sale of all or substantially all of the Capital Stock of such Restricted Subsidiary; provided, however, that after giving effect to such transaction no Default shall have occurred or be continuing, that such restriction terminates if such transaction is not be prohibited by Article VIIconsummated and 56 47 that such consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into;
(9) any encumbrance or restriction, with respect to a Restricted Subsidiary that is not a Restricted Subsidiary on the date of this Indenture, in existence at the time such Person becomes a Restricted Subsidiary and not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary; and
(10) any restriction on the sale or other disposition of assets or property securing Indebtedness as a result of a Permitted Lien on such assets or property.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Parent shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (ix) pay dividends or make any other distributions in cash or otherwise 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;
, (iiy) make any loans or advances to the Borrower Parent or any Restricted Subsidiary or (z) transfer any of its Property to Parent or any Restricted Subsidiary; or, except:
(iii1) sell, lease or transfer any of its property or assets with respect to the Borrower or any Restricted Subsidiary; provided that clauses (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and ), (y) the subordination of and (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 shall not be deemed to constitute such an encumbrance or restriction.z):
(b) Section 7.08(a) shall not prohibit:
(iA) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance , including the 2027 Notes Indenture, or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(ivB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by Parent and outstanding on such date;
(C) any encumbrance or restriction pursuant to applicable law and other customary conditions and restrictions contained in any agreement, document or instrument relating to the formation, operation and regulatory requirements or limitations related to a Captive Insurance Subsidiary;
(D) contracts or agreements for the sale of Property, including any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or instrument disposition of a Person the Capital Stock or Property of such Restricted Subsidiary;
(E) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(F) any limitation or prohibition on the disposition or distribution of Property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements, which limitation or prohibition is customary for such agreements;
(G) restrictions contained in any Qualified Receivables Transaction with respect to any Receivables Entity;
(H) customary provisions contained in leases, licenses and other similar agreements entered into in the ordinary course of business or consistent with past practice or industry norm;
(I) any encumbrance or restriction arising in the ordinary course of business, not relating to any Capital Indebtedness, that does not, individually or in the aggregate, materially detract from the value of the Property of Parent and the Restricted Subsidiaries, taken as whole, or adversely affect the Issuer’s ability to make principal and interest payments on the Notes, in each case, as determined in good faith by Parent or the Issuer;
(J) secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.09 that limit the right of the debtor to dispose of the Property securing such Indebtedness;
(K) other Indebtedness, Disqualified Stock or Indebtedness Preferred Stock (i) of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock that is a Subsidiary Guarantor or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Foreign Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or (ii) of any Restricted Subsidiary that is not a Subsidiary Guarantor or entered into a Foreign Subsidiary so long as such encumbrances and restrictions contained in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person will not materially adversely affect the Issuer’s ability to make anticipated principal or any such Subsidiary shall be deemed acquired or assumed interest payments on the Notes (as determined in good faith by the Borrower Issuer), provided that in the case of each of subclauses (i) and (ii), such Indebtedness, Disqualified Stock or any Restricted Subsidiary when such Person becomes Preferred Stock is permitted to be Incurred subsequent to the Successor Company;Issue Date pursuant to Section 4.03; and
(vL) any encumbrance encumbrances or restrictionrestrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (A) through (K) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of Parent, not materially 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.
(2) with respect to clause (z) 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 agreementcontract, or the assignment or transfer of any such lease, license (including, without limitation, licenses of intellectual property) or other contract or agreement;contract; and
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement (i) purchase money obligations for Property acquired and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(viii) any encumbrance or restriction pursuant to contained in Capital Lease Obligations, any agreement governing Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndebtedness, in each case, that impose encumbrances security agreements or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to mortgages securing Indebtedness of a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) extent such encumbrance or restriction applies only during restricts the continuance transfer of a default in respect of a payment relating the Property subject to such agreement Capital Lease Obligations, Purchase Money Indebtedness, security agreements or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIImortgages.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(iA) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(iiB) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iiiC) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility (a) the Senior Facilities Agreement or (b) any other agreement or instrumentinstrument (including the Existing Notes Indentures), in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 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 Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such the Company or any Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements, debt purchase agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, the consummation terms of any license, authorization, concession or permit or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09 if (a) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) as is customary in comparable financings (as determined in good faith by the Company)or (b) the Company determines at the time such Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes or the ability of Cabot UK Financial to make principal or interest payments on the Proceeds Loan;
(12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Transactions shall not be prohibited Board of Directors of the Company, are necessary or advisable;
(13) any encumbrance or restriction existing by Article VIIreason of any lien permitted under Section 4.12;
(14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions under Section 4.11(b) provided that the terms and conditions of any such encumbrances or restrictions are, in the good faith judgment of the Board of Directors of the Company, no more restrictive in any material respect than those under or pursuant to the agreement so extended, renewed, refinanced or replaced.
Appears in 1 contract
Sources: Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Parent Guarantor shall not, and shall not permit any Restricted Subsidiary (that is not the Company) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations Obligations owed to the Borrower Parent Guarantor or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Parent Guarantor or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Parent Guarantor or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Parent Guarantor or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(aSECTION 3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility, (b) the Existing Secured Notes, (c) the Senior Notes or (d) any other agreement or instrument, in each case, in effect at or entered into on or prior to the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreementthe Note Documents, the Collateral Documents and the GuaranteesIntercreditor Agreements;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, amalgamated, consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent Guarantor or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Parent Guarantor or was merged, amalgamated, consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date, which encumbrance or restriction only applies to the Person so acquired and its Subsidiaries (or their respective property or assets) or the property or assets so acquired; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Parent Guarantor or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement Indenture and the Collateral Documents or securing Indebtedness of the Borrower Parent Guarantor or a Restricted Subsidiary permitted under this Agreement Indenture and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(Ciii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Parent Guarantor or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Parent Guarantor or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Parent Guarantor or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Div) pursuant to customary provisions restricting dispositions of real property Real Property interests set forth in any reciprocal easement agreements of the Borrower Parent Guarantor or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement Indenture and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Parent Guarantor or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Swap Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (iHeartMedia, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Iridium shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash to Iridium or otherwise any Restricted Subsidiary on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, (ii) pay any Indebtedness or other obligations owed to the Borrower Iridium or any Restricted Subsidiary;
, (iiiii) make any loans or advances to the Borrower Iridium or any Restricted Subsidiary; or
Subsidiary or (iiiiv) sell, lease or transfer any of its property or assets to the Borrower Iridium or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit, except:
(i1) any encumbrance (or restriction similar limitations pursuant to any credit facility other notes issued by Iridium, or indentures relating thereto, that are substantially similar to those set forth in this Indenture), or any other agreement or instrument, in each case, in effect at or entered into on relating to the Closing DateSecured Bank Facility;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock Acquired Indebtedness, which encumbrance or Indebtedness of a restriction is not applicable to any Person, entered into on or before the date on which such Person was acquired by properties or mergedassets of any Person, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was so acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), 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 Borrower or any Restricted Subsidiary when such Person becomes the Successor Companyits Subsidiaries;
(v) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi3) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances (x) an agreement or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed instrument pursuant to which Indebtedness which Refinances Indebtedness Incurred pursuant to an agreement entered into for the direct referred to in clause (1) or indirect sale (2) or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary this clause (or the property or assets that are subject to such restriction3) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be is Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) 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 the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable amendment to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses clause (i1) to or (xv2) of this Section 7.08(bclause (3), or (y) Indebtedness described in clause (i), (ii) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xviii) of this paragraph (b) of Section 7.08(b) or this clause (xvi)4.03 and permitted Refinancing Indebtedness with respect thereto; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement refinancing agreement, instrument or instrument are amendment referred to in clause (x) above are, taken as a whole, no less favorable more restrictive in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates predecessor agreements (as determined by the chief financial officer of Iridium in good faith and evidenced by a certificate filed with the BorrowerTrustee). Notwithstanding ;
(4) any other provision encumbrance or restriction contained in security agreements or mortgages securing Indebtedness, or under any documents providing for Capital Lease Obligations, of a Restricted Subsidiary which are not prohibited by Section 4.12 herein to the contrary, extent such encumbrances or restrictions restrict the consummation assignment or transfer of the Transactions property or assets subject to such security agreements or mortgages, or subject to such Capital Lease Obligations;
(5) any encumbrance or restriction existing under or by reason of applicable law or regulations;
(6) customary non-assignment provisions of any licensing agreement or of any lease but only to the extent such provisions restrict the transfer of the license, lease or the property thereunder;
(7) any encumbrance or restriction contained in contracts for sales of assets otherwise permitted by this Indenture;
(8) with respect to a Restricted Subsidiary, any encumbrance or restriction imposed pursuant to an agreement that has been entered into for the sale of all or substantially all of the Capital Stock of such Restricted Subsidiary; provided, however, that after giving effect to such transaction no Default shall have occurred or be continuing, that such restriction terminates if such transaction is not be prohibited by Article VIIconsummated and 54 47 that such consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into;
(9) any encumbrance or restriction, with respect to a Restricted Subsidiary that is not a Restricted Subsidiary on the date of this Indenture, in existence at the time such Person becomes a Restricted Subsidiary and not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary; and
(10) any restriction on the sale or other disposition of assets or property securing Indebtedness as a result of a Permitted Lien on such assets or property.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) . The Borrower Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Parent Guarantor or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Parent Guarantor, (ii) make any loans or advances to the Borrower Parent Guarantor or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; Parent Guarantor (provided that (x) the dividend or liquidation priority between classes of Capital Stock, or subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit), except any encumbrance or restriction:
(i1) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, instrument in effect at or entered into on the Closing Issue Date (or, in respect of any agreement or instrument of Lexmark or any of its subsidiaries, in effect or entered into on the Lexmark Acquisition Completion Date) or pursuant to any Debt Facility, this Indenture, the Notes, the Second Lien Indenture, the Second Lien Notes or definitive documentation in respect of the Lexmark Financing Commitments or any debt issued in lieu thereof;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent Guarantor or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration infrom such Person, or to provide all or any portion of the funds utilized to consummate, the other transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with with, such acquisition, merger, consolidation or transaction) and outstanding on such date); provided that, that for the purposes of this clause (iv2), if another a Person other than the Parent Guarantor is the Successor CompanyCompany with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Borrower Parent Guarantor or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the such Successor Company;
(v3) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any encumbrance agreement or restriction:instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) pursuant to customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(A) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset that is subject thereto, (B) by virtue of any transfer of, agreement to a leasetransfer, license option or similar contract or agreementright with respect to, or Lien on, any property or assets of the assignment Parent Guarantor or transfer of any leaseRestricted Subsidiary not otherwise prohibited by this Indenture, license or other contract or agreement;
(BC) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness or other obligations of the Borrower Parent Guarantor or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict restricting the transfer or encumbrance of the property or assets subject to such mortgagesthereto, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Parent Guarantor or any Restricted Subsidiary;
, (viE) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits, net worth or inventory imposed by customers, lessors or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-Wholly Owned Restricted Subsidiaries, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Parent Guarantor or any Restricted Subsidiary in any manner material to the Parent Guarantor or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations, Bank Products Obligations, Third-Party Vendor Financing Programs or Qualified Receivables Transactions;
(vii6) with respect to any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock Stock, property or assets of the Borrower any Person, property or any Restricted Subsidiary (or the assets, imposing restrictions with respect to such Person, Capital Stock, property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii7) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;authority having jurisdiction over the Parent Guarantor or any Restricted Subsidiary or any of their businesses; or
(x) 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 or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising 8) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof407 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders of the Notes than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Company) or (bii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (b), either (ax) the Borrower Company determines at the time of entry into such agreement or instrument in good faith that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement Indebtedness, (B) relating to any sale of receivables by or instrument;
Indebtedness of a Foreign Subsidiary or (xvC) any encumbrance relating to Indebtedness of or restriction existing a Financing Disposition by reason or to or in favor of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIReceivables Subsidiary.
Appears in 1 contract
Sources: Indenture (Xerox Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Each of the Issuers and Holdings will not, and shall will not permit any Restricted Subsidiary to, to create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuers or any Restricted Subsidiary;
(ii2) make any loans or advances to Holdings, the Borrower Issuers or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to Holdings, the Borrower Issuers or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to Holdings, the Borrower Issuers or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuers or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into Holdings, the Borrower Issuers or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by Holdings, the Borrower Issuers or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by Holdings or the Borrower Issuers or was merged, consolidated or otherwise combined with or into Holdings, the Borrower Issuers or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv2), 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 Borrower Issuers or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) 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 agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of Holdings, the Borrower Issuers or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Issuers or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of Holdings, the Borrower Issuers or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) 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 or consistent with past practicebusiness;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerHoldings, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerIssuers) and where, in the case of clause (bii), either (aA) the Borrower determines Issuers determine at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s Issuers’ ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuers). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Sources: Indenture (Trisyn Group, Inc.)