Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to: (a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company; (b) make any loans or advances to the Company; or (c) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c): (i) any encumbrance or restriction pursuant to applicable law; (ii) any encumbrance or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as in effect or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in or in contemplation of, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company) and outstanding on such date; (iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition; (v) any encumbrance or restriction existing by reason of 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; (vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; (vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03; (viii) in the case of clause (c), any encumbrance or restriction (1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or (3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property; (ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; (x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03; (xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture; (xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person); (xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights; (xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary; (xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and (xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenture.
Appears in 1 contract
Sources: Indenture (Berry Plastics Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c):
(i) except any encumbrance or restriction restriction:
(1) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Issue Date, and any amendmentsCredit Facility, modificationsthe Senior Indenture, restatementsthis Indenture, renewalsthe Senior Notes or the Notes;
(2) pursuant to any agreement or instrument of a Person, extensionsor relating to Indebtedness or Capital Stock of a Person, replacements and refinancings thereof on terms and conditions which Person is acquired by or merged or consolidated with respect to or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such encumbrances and restrictions that are not materially more restrictivePerson, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was Incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this Indentureclause (2), if 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, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes the Successor Company;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Holders of the Company (other Notes taken as a whole than Indebtedness Incurred as consideration encumbrances and restrictions contained in the Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such date);
(iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to , or the extent such encumbrance assignment or restriction restricts the transfer of the property subject to such security agreements or
any lease, license or other contract, (3B) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness of Foreign Subsidiaries permitted a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary or (I) pursuant to Hedging Obligations;
(xv5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xviassets) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred imposed pursuant to an agreement referred 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 in Section 4.05(c)(isuch restriction) through pending the closing of such sale or disposition;
(xvi6) by reason of any applicable law, rule, regulation or contained in order, or required by any amendment, modification regulatory authority having jurisdiction over the Company or replacement any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement referred or instrument (A) relating to in any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.05(c)(i407 (i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such predecessor agreements encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any Credit Facility which is no less favorable sale of receivables by a Foreign Subsidiary or (C) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained in the Credit Agreement on the date of this IndentureFinancing Disposition to or by any Receivables Entity.
Appears in 1 contract
Sources: Indenture (VWR International, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyCompany or any Restricted Subsidiary;
(b2) make any loans or advances to the CompanyCompany or any Restricted Subsidiary; or
(c3) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c):Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance this Indenture or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Datedate of this Indenture (including, without limitation, this Indenture and the Credit Agreement in effect on such date) or any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect encumbrance or restriction pursuant to such encumbrances and restrictions that are not materially any Indebtedness Incurred after the Issue Date no more restrictive, taken as a whole, than those the encumbrances and or restrictions with respect pursuant to such Indebtedness as in effect on the date of Credit Agreement or this Indenture;
(iiiii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such a Restricted Subsidiary prior to before the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the CompanyCompany or in contemplation of such transaction) and outstanding on such date;
(iviii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to Refinancing Indebtedness or Indebtedness under the Credit Agreement Incurred to refinance Indebtedness pursuant to an agreement for referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the sale encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or other disposition amendment are no less favorable, taken as a whole, in any material respect to the holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (i) and (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary Subsidiary, whichever is applicable or assets are ordinary and customary for a financing of that restrict distributions type and would not materially adversely affect our ability to make payments on the Notes (in each case as determined in good faith by that Restricted Subsidiary or distributions the Board of those assets pending Directors of the sale or other dispositionCompany);
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viiiiv) in the case of clause (c)3) of the first paragraph of this Section 4.15, any encumbrance or restriction:
(1A) that restricts in 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;
(2B) contained in mortgages, pledges or other security agreements securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrance encumbrances or restriction restricts restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements agreements; or
(3C) pursuant to Purchase Money Indebtedness customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(v) purchase money obligations for property acquired in the ordinary course of business that imposes impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.15 on the property so acquired;
(vi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that propertyare subject to such restriction) pending the closing of such sale or disposition;
(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(viii) any restriction with respect to a Restricted Subsidiary contained in any agreement or instrument governing Capital Stock (other than Disqualified Stock) of any Restricted Subsidiary that is in effect on the date such Restricted Subsidiary is acquired by the Company (and is not incurred in contemplation of such acquisition);
(ix) encumbrances any encumbrance or restrictions that are restriction on cash or were created other deposits or net worth imposed by virtue customers under contracts entered into in the ordinary course of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;business; and
(x) encumbrances and any agreement or instrument placing contract restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained applicable only to a Securitization Entity effected in indentures connection with or other debt instruments, facilities Liens on receivables or arrangements that related assets which are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer subject of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this IndenturePermitted Securitization Transaction.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the Company;
Company or a Restricted Subsidiary, (bii) make any loans or advances to the Company; or
Company or any other Restricted Subsidiary or (ciii) transfer any of its property or assets to the CompanyCompany or any other Restricted Subsidiary, except, in the case except for such encumbrances or restrictions existing under or by reason of clauses (a), (b) and (c):
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) Facility as in effect or entered into on the Closing Issue Date, and any amendments, modificationsrestatements, renewals, replacements or refinancings thereof; provided, however, that such amendments, restatements, renewals, extensions, replacements and or refinancings thereof on terms and conditions are no more restrictive with respect to such encumbrances dividend and other payment restrictions that are not materially than those contained in the Credit Facility (or, if more restrictive, taken as a whole, than those encumbrances and restrictions with respect contained in the Indenture) immediately prior to any such Indebtedness as in effect on the date of this Indenture;
amendment, restatement, renewal, replacement or refinancing, (iiib) applicable law, (c) any encumbrance instrument governing Indebtedness or restriction with respect to a Restricted Subsidiary pursuant to Capital Stock of an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was Acquired Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (other than except to the extent such Indebtedness Incurred as consideration was incurred in connection with or in contemplation ofof such acquisition); provided, however, that (1) such restriction is not applicable to any Person, or the transaction properties or series assets of related transactions pursuant any Person, other than the Acquired Person, and (2) the consolidated net income of an Acquired Person for any period prior to which such Restricted Subsidiary became a Restricted Subsidiary or acquisition shall not be taken into account in determining whether such acquisition was otherwise acquired permitted by the Companyterms of the Indenture, (d) and outstanding on such date;
(iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of customary non-assignment 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash leases or other deposits or net worth imposed by customers under contracts agreements entered into in the ordinary course of business;
business and consistent with past practices, (viie) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes only impose restrictions on that property;
the property so acquired, (ixf) encumbrances an agreement for the sale or restrictions that are or were created by virtue disposition of any transfer of, agreement to transfer, or option or right with respect to any property the Capital Stock or assets of the Company or any such Restricted Subsidiary; provided, however, that such restriction is only applicable to such Restricted Subsidiary or assets, as applicable, and such sale or disposition otherwise is permitted under Section 4.17 below; provided, further, however, that such restriction or encumbrance shall be effective only for a period from the execution and delivery of such agreement through a termination date not otherwise prohibited by this later than 270 days after such execution and delivery, or (g) Refinancing Indebtedness permitted under the Indenture;
(x) encumbrances and ; provided, however, that the restrictions contained in the agreements governing such Refinancing Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by are no more restrictive in the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, aggregate than those contained in this Indenture the agreements governing the Notes Indebtedness being refinanced immediately prior to such refinancing. Notwithstanding the foregoing, neither (a) customary provisions restricting subletting or assignment of any lease entered into in the Credit Agreement ordinary course of business, consistent with past practice, nor (b) Liens permitted under the Indenture, shall in and of themselves be considered a restriction on the date ability of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any applicable Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or assets, as the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenturemay be.
Appears in 1 contract
Sources: Indenture (Terex Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company UCAR International 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 restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to UCAR International or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to UCAR International or the Company;
Company (including the Intercompany Note Obligations), (b) make any loans or advances to UCAR International or the Company; or
Company or (c) transfer any of its property or assets to UCAR International or the Company, except, in the case of :
(1) with respect to clauses (a), (b) and (c):),
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness Issue Date (including the Credit Agreement as in effect on the date of this IndentureIssue Date);
(iiiii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary in effect or entered into on or prior to the date on which such Restricted Subsidiary was acquired by UCAR International or a Restricted Subsidiary or, in the Company case of a Restricted Subsidiary formed to acquire a business, the date on which such business was acquired by such Restricted Subsidiary (other than Indebtedness Incurred an agreement entered into, in connection with, as consideration in in, or in contemplation ofto provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the CompanyUCAR International or a Restricted Subsidiary or such business was acquired by such Restricted Subsidiary) and outstanding on such date;
(iviii) any encumbrance or restriction contained in an agreement effecting a refinancing, substitution, novation, extension, renewal, refund, repayment, prepayment, redemption, defeasement or retirement, or issuance of exchange or replacement Indebtedness, pursuant to an agreement referred to in Section 4.05(1)(i) or (ii) or in this clause (iii) or contained in any amendment to an agreement referred to in Section 4.05(1)(i) or (ii) or in this clause (iii); PROVIDED, HOWEVER, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or amendment are no less favorable to the Securityholders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in the predecessor agreement; and
(iv) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or other disposition of a Restricted Subsidiary all or substantially all the Capital Stock or assets that restrict distributions by that of such Restricted Subsidiary or distributions of those assets Subsidiary, pending the closing of such sale or other disposition;; and
(v2) with respect to clause (c) only,
(i) any such encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance, contract or similar contract,property or asset or (B) that is included in a lease, license, installment purchase or sale contract or similar agreement to the extent such encumbrances or restrictions limit the transfer of the property or asset subject to such lease, license, contract or similar agreement; and
(2ii) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts restrictions restrict the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenturemortgages.
Appears in 1 contract
Sources: Indenture (Ucar International Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any such Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock to the Company or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the CompanyCompany (provided that dividend or liquidation priority between classes of Capital Stock, exceptor subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, in the case of clauses (awill not be deemed to constitute such an encumbrance or restriction), (b) and (c):
(i) except any encumbrance or restriction restriction:
(1) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing DateIssue Date or pursuant to any Debt Facility, and this Indenture or the Notes;
(2) pursuant to any amendmentsagreement or instrument of a Person, modificationsor relating to Indebtedness or Capital Stock of a Person, restatementswhich Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, renewalsor which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, extensionsor any other transaction entered into in connection with any such acquisition, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictivemerger or consolidation, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that for purposes of this Indentureclause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any agreement or 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 Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Holders of the Company (other Notes than Indebtedness Incurred as consideration encumbrances and restrictions contained in the Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such date);
(iv4) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of customary 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts agreements entered into in the ordinary course of business;
(vii5) (A) pursuant to any encumbrance agreement or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) 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 to a leasethereto, license or similar contract,
(2B) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness or other obligations of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any a Restricted Subsidiary and permitted to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits, 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 Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations, Bank Products Obligations, Third-Party Vendor Financing Programs or Qualified Receivables Transactions;
(xv6) with respect to any encumbrance agreement for the direct or restriction existing under indirect disposition of Capital Stock, property or assets of any Person, property or assets, imposing restrictions with respect to such Person, Capital Stock, property or assets pending the closing of such sale or disposition;
(7) by reason of a Receivables Facility any applicable law, rule, regulation or other contractual requirements order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of a Receivables Facility permitted pursuant to Section 4.03their businesses; PROVIDED that such restrictions apply only to such Receivables Facility; andor
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred 8) pursuant to an agreement referred or instrument (A) relating to in any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.05(c)(i407 (i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company) or (ii) if such predecessor agreements encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any Credit Facility which is no less favorable sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained Financing Disposition by or to or in the Credit Agreement on the date favor of this Indentureany Receivables Subsidiary.
Appears in 1 contract
Sources: Indenture (Xerox Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create directly or otherwise cause indirectly, enter into, incur or permit to exist any agreement or become effective other arrangement that prohibits, restricts or imposes any consensual encumbrance condition upon (a) the ability of the Company or restriction on the any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets or (b)the ability of any Restricted Subsidiary to:
(a) to pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company;
(b) , to make any loans or advances to the Company; or
(c) Company or a Restricted Subsidiary or to Guarantee Indebtedness of or to transfer any of its property or assets to the Company, except, in Company or any other Restricted Subsidiary that owns Capital Stock therein; provided that the case of clauses foregoing shall not apply to (a), i)restrictions and conditions imposed by law or by this Agreement; (b) and (c):
(i) any ii)any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Datedate hereof identified on Schedule 6.07 (but shall apply to any extension or renewal of, and or any amendmentsamendment or modifica tion expanding the scope of, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to any such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
restriction or condition); (iii) any iii)any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating applicable to any Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration an agreement entered into in connection with, or in contemplation anticipation of, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company) and outstanding on such date;
; (iv) any such [NYCORP2:396433.11:4417A:09/06/97--2:48a] encumbrance or restriction pursuant consisting of customary non-assignment provisions in leases governing leasehold interests to an agreement for the sale extent such provisions restrict the transfer of the lease or other disposition the property leased thereunder; (v)in the case of a Restricted Subsidiary transferring any of its property or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of provisions with respect to the disposition or distribution of assets or property in joint venture agreementsCompany, asset sale agreements, stock sale agreements and other similar agreements;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts restrictions restrict the transfer of the property subject to such security agreements or
or mortgages; and (3vi) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right restriction with respect to any property or assets of the Company or any a Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition; and provided further that clause (a) of the foregoing shall not apply to in Section 4.05(c)(i) through (xvi) restrictions or contained in conditions imposed by any amendment, modification agreement relating to secured Indebtedness permitted by this Agreement if such restric tions or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable conditions apply only to the Holders taken as a whole than the encumbrances and restrictions contained in property or assets securing such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this IndentureIndebtedness.
Appears in 1 contract
Sources: Letter of Credit and Reimbursement Agreement (Contifinancial Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the CompanyCompany (provided that dividend or liquidation priority between classes of Capital Stock, exceptor subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, in the case of clauses (awill not be deemed to constitute such an encumbrance or restriction), (b) and (c):
(i) except any encumbrance or restriction restriction:
(1) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Issue Date, and any amendmentsCredit Facility, modificationsthe Senior Subordinated Indenture, restatementsthis Indenture, renewalsthe Senior Subordinated Notes or the Notes;
(2) pursuant to any agreement or instrument of a Person, extensionsor relating to Indebtedness or Capital Stock of a Person, replacements and refinancings thereof on terms and conditions which Person is acquired by or merged or consolidated with respect to or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such encumbrances and restrictions that are not materially more restrictivePerson, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this Indentureclause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an ”Amendment”); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Holders of the Company (other Notes than Indebtedness Incurred as consideration encumbrances and restrictions contained in the Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such date);
(iv4) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to , or the extent such encumbrance assignment or restriction restricts the transfer of the property subject to such security agreements or
any lease, license or other contract, (3B) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness of Foreign Subsidiaries permitted a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and 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;
(xv5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xviassets) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred imposed pursuant to an agreement referred 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 in Section 4.05(c)(isuch restriction) through pending the closing of such sale or disposition;
(xvi6) by reason of any applicable law, rule, regulation or contained in order, or required by any amendment, modification regulatory authority having jurisdiction over the Company or replacement any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement referred or instrument (A) relating to in any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.05(c)(i407 (i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such predecessor agreements encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any Credit Facility which is no less favorable sale of receivables by a Foreign Subsidiary or (C) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained Financing Disposition by or to or in the Credit Agreement on the date favor of this Indentureany Special Purpose Entity.
Appears in 1 contract
Sources: Indenture (Hertz Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the Company, except, in the case of clauses except (a), (b) and (c):
(iA) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
Indenture (iiiincluding, without limitation, the Senior Credit Facility); (B) any encumbrance or restriction with respect to a Restricted Subsidiary (1) pursuant to an agreement relating to any Indebtedness Incurred by such a Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company, or of another Person that is assumed by the Company or a Restricted Subsidiary in connection with the acquisition of assets from, or merger or consolidation with, such Person (other than Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company, or such acquisition of assets, merger or consolidation) and outstanding on the date of such date;
acquisition, merger or consolidation or (iv2) pursuant to any agreement (not relating to any Indebtedness) in existence when a Person becomes a Subsidiary of the Company or when such agreement is acquired by the Company or any Subsidiary thereof, that is not created in contemplation of such Person becoming such a Subsidiary or such acquisition (for purposes of this clause (B), if another Person is the Successor Company, any Subsidiary or agreement thereof shall be deemed acquired or assumed, as the case may be, by the Company when such Person becomes the Successor Company); (C) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement for (a "Refinancing Agreement") effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refinances or replaces, an agreement referred to in clause (A) or (B) of this covenant or this clause (C) or contained in any amendment to an agreement referred to in clause (A) or (B) of this covenant or this clause (C) (an "Initial Agreement") or contained in any amendment to an Initial Agreement; provided, however, that the sale encumbrances and restrictions contained in any such Refinancing Agreement or other disposition amendment are no less favorable to the Holders of the Notes taken as a Restricted Subsidiary whole than encumbrances and restrictions contained in the Initial Agreement or assets that restrict distributions by that Restricted Subsidiary Agreements to which such Refinancing Agreement or distributions of those assets pending the sale or other disposition;
amendment relates; (vD) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
, or the assignment or transfer of any lease, license or other contract, (2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (x3) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness of Foreign Subsidiaries permitted a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements or (4) pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary;
; (xvE) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; and (F) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date transfer of this Indentureproperty or assets required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses.
Appears in 1 contract
Sources: Indenture (Colortyme Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) 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 CompanyCompany or any Restricted Subsidiary;
(b2) make any loans or advances to the CompanyCompany or any Restricted Subsidiary; or
(c3) sell, lease or transfer any of its property or assets to the CompanyCompany or any Restricted Subsidiary, except, 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 case subordination of clauses (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
b) The provisions of paragraph (a), (b) and (c):above will not prohibit:
(i1) any encumbrance or restriction pursuant to applicable law;
(iia) any encumbrance Credit Facility or restriction (b) any other agreement or instrument, in any agreement with respect to Indebtedness (including the Credit Agreement) as each case, in effect at or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
(iii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness Incurred by such Restricted Subsidiary prior to of a Person, entered into on or before the date on which such Restricted Subsidiary Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was otherwise acquired by the CompanyCompany or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary entered into or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (2), if another Person is the Successor Person, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Person;
(iv3) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;restriction:
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) A. that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,, or the assignment or transfer of any lease, license or other contract;
(2) B. contained in mortgages, pledges, charges or other security agreements permitted under this Agreement or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Agreement to the extent such encumbrance encumbrances or restriction restricts restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements agreements; or
(3) C. pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi4) 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;
5) any encumbrance or restriction with respect to a Restricted Subsidiary (xor any of its property or assets) an agreement effecting a Refinancing of Indebtedness Incurred imposed pursuant to an agreement referred entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
6) customary provisions in Section 4.05(c)(ileases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
7) through (xviencumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority, including pursuant to the terms of any license, concession, authorization, franchise, permit or similar arrangement;
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;
9) any encumbrance or contained in restriction pursuant to Currency Agreements or Interest Rate Agreements;
10) any amendment, modification encumbrance or replacement restriction arising pursuant to an agreement referred or instrument (x) relating to in any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 4.05(c)(i3 (Limitation on Indebtedness) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that other than any refinancing Indebtedness which is subject to sub-paragraph 13) below) if the encumbrances and restrictions contained in any such Refinancing agreement or instrument taken as a whole are not materially less favorable to the Noteholders than (i) the encumbrances and restrictions contained in this Agreement and the Intercreditor Agreement, together with the Security Documents associated therewith as in effect on the Closing Date or (ii) is customary in comparable financings (as determined in good faith by the Company) or where the Company determines when such Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the ability of the Issuers to make principal or interest payments on the Notes (as determined in good faith by a responsible financial or chief accounting officer of the Company), or (y) constituting an Additional Intercreditor Agreement;
11) any encumbrance or restriction existing by reason of any lien permitted under Section 6 (Limitation on Liens) and the Intercreditor Agreement or any Additional Intercreditor Agreement;
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; or
13) any agreement, encumbrance or restriction that extends, renews, refinances or replaces any encumbrance or restriction referred to in paragraphs b)1) through b)12) above or this paragraph b)13) or contained in any amendment, supplement or other modification to an agreement referred to in paragraphs b)1) through b)12) above or replacement this paragraph b)13), provided, however, that such encumbrances and restrictions contained in any such agreement, encumbrance or restriction are no less favorable in any material respect to the Holders Noteholders taken as a whole than the encumbrances and restrictions contained so extended, refinanced, replaced, amended, supplemented or modified, or will not adversely affect, in such predecessor agreements any material respect, the ability of the Issuers to make principal or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement interest payments on the date Notes (as determined in good faith by a responsible financial or chief accounting officer of this Indenturethe Company).
Appears in 1 contract
Sources: Senior Notes Purchase Agreement (Inspired Entertainment, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
Company or, in the case of a Restricted Subsidiary that is not a Subsidiary Guarantor, to a Subsidiary Guarantor, (bii) make any loans or advances to the Company; Company or
, in the case of a Restricted Subsidiary that is not a Subsidiary Guarantor, to a Subsidiary Guarantor or (ciii) transfer any of its property or assets to the Company, exceptCompany or, in the case of clauses a Restricted Subsidiary that is not a Subsidiary Guarantor, to a Subsidiary Guarantor (aprovided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), (b) and (c):
(i) except any encumbrance or restriction restriction:
(1) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Issue Date, and any amendmentsCredit Facility, modificationsthis Indenture, restatementsthe Note Security Documents, renewalsthe Intercreditor Agreements, extensionsthe Notes, replacements and refinancings thereof on terms and conditions the Senior First Priority Note Documents, the Senior First Priority Notes, the Senior Unsecured Indenture, the Senior Unsecured Notes, the Senior Subordinated Indenture or the Senior Subordinated Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with respect to or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such encumbrances and restrictions that are not materially more restrictivePerson, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this Indentureclause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Holders of the Company (other Notes than Indebtedness Incurred as consideration encumbrances and restrictions contained in the Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such date);
(iv4) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to , or the extent such encumbrance assignment or restriction restricts the transfer of the property subject to such security agreements or
any lease, license or other contract, (3B) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness of Foreign Subsidiaries permitted a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, (I) pursuant to Hedging Obligations entered into for bona fide hedging purposes or (J) pursuant to Bank Products Obligations;
(xv5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred assets), imposed pursuant to an agreement referred 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 in Section 4.05(c)(isuch restriction) through pending the closing of such sale or disposition;
(xvi6) by reason of any applicable law, rule, regulation or contained in order, or required by any amendment, modification regulatory authority having jurisdiction over the Company or replacement any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement referred or instrument (A) relating to in any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.05(c)(i407 (i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such predecessor agreements encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any Credit Facility which is no less favorable sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained Financing Disposition by or to or in the Credit Agreement on the date favor of this Indentureany Special Purpose Entity.
Appears in 1 contract
Sources: Indenture (Hd Supply, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations indebtedness owed to the CompanyCompany or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this covenant;
(b2) make any loans or advances to the CompanyCompany or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); oror |
(c3) sell, lease or transfer any of its property properties or assets to the CompanyCompany or any of its Restricted Subsidiaries. However, except, in the case of clauses (a), (b) and (c):preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(i1) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any agreement with respect to agreements governing Existing Indebtedness (including and the Credit Agreement) Agreement as in effect or entered into on the Closing Date, date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, extensionssupplements, refundings, replacements and or refinancings thereof on terms and conditions are not in the good faith judgment of an officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of the covenant described in Section 3.2 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances and or restrictions that are contained therein are, in the reasonable good faith judgment of an officer of the Company, either (a) not materially more restrictive, taken as a whole, than those encumbrances contained in this Indenture, the Notes and restrictions with respect to such Indebtedness the Note Guarantees or the Credit Agreement as in effect on the date of this IndentureIndenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(iii4) applicable law, rule, regulation or order;
(5) any encumbrance agreement or restriction with respect to other instrument of a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (other than Indebtedness Incurred as consideration except to the extent such agreement or instrument was created in connection with or in contemplation ofof such acquisition), which encumbrance or restriction is not applicable to any Person, or the transaction properties or series assets of related transactions pursuant to which any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such Restricted Subsidiary became amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an officer of the Company, no more restrictive, taken as a Restricted Subsidiary or whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was otherwise acquired permitted by the Company) and outstanding on such dateterms of this Indenture to be incurred;
(iv6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Finance Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of the preceding paragraph; |
(8) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict restricts distributions by that Restricted Subsidiary or distributions of those assets pending the its sale or other disposition;
(v9) any encumbrance or restriction existing by reason Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions with respect of the covenant described in Section 3.6 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the assets that are the subject of such agreements;
(vi12) any encumbrance encumbrances or restriction existing by reason of restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(vii14) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business;
(16) any encumbrance or restriction existing with respect to an Unrestricted Subsidiary pursuant to or by reason of restrictions an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of Unrestricted Subsidiary becoming a Restricted Subsidiary to the extent and any such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect does not extend to any assets or property or assets of the Company or any other Restricted Subsidiary not otherwise prohibited by this Indenture;other than the assets and property of such Unrestricted Subsidiary; and
(x17) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) contractual encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement effect on the date of this Indenture;
(xii) Issue Date and, in each case, any similar contractual encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to effected by any assets amendments, modifications, restatements, renewals, supplements, refundings, replacements or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment refinancings of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests instruments. In each case set forth in easements and similar arrangements of above, notwithstanding any stated limitation on the Company assets or any Restricted Subsidiary;
(xv) any property that may be subject to such encumbrance or restriction, an encumbrance or restriction existing under on a specified asset or by reason property or group or type of a Receivables Facility assets or other contractual requirements of a Receivables Facility permitted pursuant property may also apply to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance all improvements, additions, repairs, attachments or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenture.respect thereof. |
Appears in 1 contract
Sources: Indenture (Earthstone Energy Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyCompany or any Restricted Subsidiary;
(b2) make any loans or advances to the CompanyCompany or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(c3) sell, lease or transfer any of its property or assets to the Company, except, in the case of clauses (a), Company or any Restricted Subsidiary.
(b) and However, paragraph (c):a) of this Section 4.12 will not prohibit:
(i1) any encumbrance or restriction pursuant to applicable lawor by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture and the Security Documents as in effect on such date;
(ii2) any encumbrance or restriction in any agreement with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Company or another Restricted Subsidiary (including other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the Credit Agreementfunds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Company or a Restricted Subsidiary or in contemplation of the transaction) as and outstanding on such date; 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;
(3) encumbrances and restrictions contained in effect or contracts entered into on in the Closing Dateordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such encumbrances 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 restrictions that are any such encumbrance or restriction shall not materially more restrictive, taken as a whole, extend to any assets or property of the Company or any other Restricted Subsidiary other than those encumbrances the assets and restrictions property of such Unrestricted Subsidiary;
(5) with respect to any Restricted Subsidiary incorporated or organized outside the United States, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness as was Incurred if either (a) the encumbrance or restriction applies only in effect the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the date Notes, as determined in good faith by the Board of this IndentureDirectors of the Company, whose determination shall be conclusive;
(iii6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any effecting a refunding, replacement or refinancing of Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in or in contemplation of, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company) and outstanding on such date;
(iv) any encumbrance or restriction pursuant to an agreement for referred to in clauses (1) through (5), clause (12) or this clause (6) of this Section 4.12(b) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (5), clause (12) or this clause (6) of this Section 4.12(b); provided, that the sale or other disposition of a encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other dispositionrefinanced;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii7) in the case of clause (c)3) of Section 4.12(a) above, any encumbrance or restriction:
(1A) 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 the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(2B) 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 encumbrance encumbrances or restriction restricts restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(C) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture which are not included in the definition of Indebtedness pursuant to clause (3) of the penultimate paragraph of the definition thereof;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary; or
(3E) pursuant provisions with respect to Purchase Money Indebtedness the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that imposes impose encumbrances or restrictions of the nature described in clause (3) of Section 4.12
(a) on that propertythe property so acquired;
(ix9) 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 of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(10) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(11) encumbrances or restrictions that are arising or were created existing by virtue reason of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company applicable law or any Restricted Subsidiary not otherwise prohibited by this Indentureapplicable rule, regulation or order;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi12) encumbrances or restrictions contained in indentures agreements governing Indebtedness of the Company or other debt instrumentsany of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 4.09; provided, facilities that the provisions relating to such encumbrance or arrangements that restriction contained in such Indebtedness are not materially more restrictive, less favorable to the Company and its Restricted Subsidiaries taken as a whole, as determined by the Company in good faith, than those the provisions contained in the First Lien Credit Agreement and in this Indenture governing the Notes or the Credit Agreement as in effect on the date of this IndentureIssue Date;
(xii13) encumbrances and restrictions on the date issuance of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired Preferred Stock by the Company or any a Restricted Subsidiary (including or the payment of dividends thereon in accordance with the terms thereof; provided, that issuance of such Preferred Stock is permitted pursuant to Section 4.09 and the acquisition terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock of a Person(other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiii14) customary restrictions imposed on the transfer ofsupermajority voting requirements existing under corporate charters, or in licenses related tobylaws, copyrighted or patented materials or other intellectual property stockholders agreements and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rightssimilar documents and agreements;
(xiv15) customary restrictions on real property interests set forth cash or other deposits or net worth imposed by customers under contracts entered into in easements and similar arrangements the ordinary course of the Company or any Restricted Subsidiary;business; and
(xv16) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the First Lien Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive with respect to such dividend and other payment restrictions than those contained in the First Lien Credit Agreement as in effect on the date of this IndentureIssue Date.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c)::
(i1) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenturethe Indenture (including, without limitation, the Senior Credit Facility and the Senior Secured Notes);
(iii2) any encumbrance or restriction with respect to a Restricted Subsidiary (x) pursuant to an agreement relating to any Indebtedness Incurred by such a Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company, or of another Person that is assumed by the Company or a Restricted Subsidiary in connection with the acquisition of assets from, or merger or consolidation with, such Person (other than Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company, or such acquisition of assets, merger or consolidation) and outstanding on the date of such dateacquisition, merger or consolidation or (y) pursuant to any agreement (not relating to any Indebtedness) in existence when a Person becomes a Subsidiary of the Company or when such agreement is acquired by the Company or any Subsidiary thereof, that is not created in contemplation of such Person becoming such a Subsidiary or such acquisition (for purposes of this clause (2), if another Person is the Successor Company, any Subsidiary or agreement thereof shall be deemed acquired or assumed, as the case may be, by the Company when such Person becomes the Successor Company);
(iv3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement for (a "Refinancing Agreement") effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refinances or replaces, an agreement referred to in clause (1) or (2) of this Section 4.5 or this clause (3) (an "Initial Agreement") or contained in any amendment to an Initial Agreement; provided, however, that the sale encumbrances and restrictions contained in any such Refinancing Agreement or other disposition amendment are no less favorable to the Holders of the Securities taken as a Restricted Subsidiary whole than encumbrances and restrictions contained in the Initial Agreement or assets that restrict distributions Initial Agreements to which such Refinancing Agreement or amendment relates (as conclusively determined in good faith by that Restricted Subsidiary or distributions the Board of those assets pending the sale or other dispositionDirectors);
(v4) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to , or the extent such encumbrance assignment or restriction restricts the transfer of the property subject to such security agreements or
any lease, license or other contract, (3B) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this the Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness of Foreign Subsidiaries permitted a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements or (D) pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(xv5) 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;
(6) any encumbrance or restriction existing under on the transfer of property or assets required by reason any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facilitytheir businesses; and
(xvi7) any encumbrance or restriction pursuant to (x) an agreement effecting relating to any Indebtedness incurred, or any sale of receivables, by a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this IndentureForeign Subsidiary.
Appears in 1 contract
Sources: Indenture (Telex Communications Intermediate Holdings LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall Borrower will not, and shall will not permit any Material Restricted Subsidiary to, to create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
Borrower, (bii) make any loans or advances to the Company; or
Borrower or (ciii) transfer any of its property or assets to the CompanyBorrower (provided that dividend or liquidation priority between classes of Capital Stock, exceptor subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, in the case of clauses (awill not be deemed to constitute such an encumbrance or restriction), (b) and (c):
(i) except any encumbrance or restriction restriction:
(a) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Date, Effective Date and any amendmentsCredit Facility;
(b) pursuant to any agreement or instrument of a Person, modificationsor relating to Indebtedness or Capital Stock of a Person, restatementswhich Person is acquired by or merged or consolidated with or into the Borrower or any Restricted Subsidiary, renewalsor which agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this Indenturesubsection 7.9(b), if a Person other than the Borrower is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(iiic) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in subsections 7.9(a) or (b) above or this subsection 7.9(c) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Lenders than encumbrances and restrictions contained in the Company (other than Indebtedness Incurred as consideration in Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such dateBorrower);
(iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
, or the assignment or transfer of any lease, license or other contract, (2ii) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (iii) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts restricting the transfer of the property or assets subject thereto, (iv) pursuant to such security customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements or
of the Borrower or any Restricted Subsidiary, (3v) pursuant to Purchase Money Indebtedness for Obligations that impose encumbrances or restrictions on the property acquired or assets so acquired, (vi) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (vii) 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, (viii) that imposes restrictions on that property;
(ix) encumbrances arises or restrictions that are or were created by virtue is agreed to in the ordinary course of any transfer of, agreement to transfer, or option or right with respect to any business and does not detract from the value of property or assets of the Company Borrower or any Restricted Subsidiary not otherwise prohibited by this Indenturein any manner material to the Borrower or such Restricted Subsidiary, or (ix) pursuant to Hedging Obligations;
(xe) encumbrances and restrictions contained in Indebtedness with respect to a Restricted Subsidiary (or any of Foreign Subsidiaries permitted its property or assets) imposed pursuant to Section 4.03 an agreement entered into for the direct or industrial revenue indirect sale or similar bonds Incurred 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;
(f) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company Borrower or any Restricted Subsidiary and permitted pursuant to Section 4.03;or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary or Home Warranty Subsidiary; or
(xig) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred or instrument (i) relating to in Section 4.05(c)(iany Indebtedness permitted to be Incurred subsequent to the Effective Date pursuant to subsection 7.1, (A) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole Lenders than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Borrower), or (B) if such predecessor agreements 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 either (x) the Borrower determines in good faith that such encumbrance or restriction will not materially affect the Borrower’s ability to make principal or interest payments on the Loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (ii) relating to any Credit Facility which is no less favorable sale of receivables by or Indebtedness of a Foreign Subsidiary or (iii) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained Financing Disposition by or to or in the Credit Agreement on the date favor of this Indentureany Special Purpose Entity.
Appears in 1 contract
Sources: Credit Agreement (Servicemaster Global Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c):
(i) except any encumbrance or restriction restriction:
(1) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Issue Date, and any amendmentsCredit Facility, modificationsthe Senior Indenture, restatementsthis Indenture, renewalsthe Senior Notes or the Notes;
(2) pursuant to any agreement or instrument of a Person, extensionsor relating to Indebtedness or Capital Stock of a Person, replacements and refinancings thereof on terms and conditions which Person is acquired by or merged or consolidated with respect to or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such encumbrances and restrictions that are not materially more restrictivePerson, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was Incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this Indentureclause (2), if 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, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes the Successor Company;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Holders of the Company (other Notes taken as a whole than Indebtedness Incurred as consideration encumbrances and restrictions contained in the Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such date);
(iv4) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to , or the extent such encumbrance assignment or restriction restricts the transfer of the property subject to such security agreements or
any lease, license or other contract, (3B) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness of Foreign Subsidiaries permitted a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, (I) pursuant to Hedging Obligations or (J) pursuant to any joint venture or similar agreement or arrangement entered into in connection with a Fiskeby Transaction;
(xv5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xviassets) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred imposed pursuant to an agreement referred 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 in Section 4.05(c)(isuch restriction) through pending the closing of such sale or disposition;
(xvi6) by reason of any applicable law, rule, regulation or contained in order, or required by any amendment, modification regulatory authority having jurisdiction over the Company or replacement any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement referred or instrument (A) relating to in any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.05(c)(i407 (i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such predecessor agreements encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any Credit Facility which is no less favorable sale of receivables by a Foreign Subsidiary or (C) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained in the Credit Agreement on the date of this IndentureFinancing Disposition to or by any Receivables Entity.
Appears in 1 contract
Sources: Indenture (Graphic Packaging Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a1) pay dividends or make any other distributions on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company;
Issuer or a Restricted Subsidiary, (b2) make any loans or advances to the Company; or
Issuer or a Restricted Subsidiary or (c3) transfer any of its property or assets to the CompanyIssuer or a Restricted Subsidiary.
(b) Section 4.09(a) shall not apply to:
(1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date (as in effect on the Issue Date) or with respect to the Credit Agreement (as in effect on the Issue Date);
(2) any agreement or obligation of a Person acquired by the Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition, exceptwhich encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of clauses (a)Indebtedness, (b) and (c):such Indebtedness was permitted by the terms of this Indenture to be Incurred;
(i3) any encumbrance or restriction pursuant to an agreement of any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Unrestricted Subsidiary;
(4) any encumbrance or restriction with respect to an asset or a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of such asset or all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(5) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(ii6) any encumbrance or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as in effect or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in or in contemplation of, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company) and outstanding on such date;
(iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed under contracts entered into in the ordinary course of business, including such restrictions imposed by customers under contracts or insurance, surety or bonding companies;
(7) provisions contained in any license, permit or other accreditation with a regulatory authority relating to a Related Business and entered into in the ordinary course of business;
(vii8) provisions in agreements or instruments which prohibit the payment or making of dividends or other distributions other than on a pro rata basis;
(9) any encumbrance customary non-assignment provisions in contracts, licenses and other agreements (including, without limitation, leases) entered into in the ordinary course of business;
(10) provisions limiting the disposition or restriction existing by reason distribution of restrictions on assets or property in partnership agreements, limited liability company operating agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the transfer approval of the Board of Directors of the Issuer or otherwise in the ordinary course of business of the Issuer, which limitation is applicable only to the assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03such agreements and any proceeds therefrom;
(viii11) provisions contained in the case of clause (c), any encumbrance or restrictionIndenture Documents;
(112) that restricts any agreement or instrument relating to other Indebtedness or Preferred Stock permitted to be incurred subsequent to the Issue Date under Section 4.10 if the encumbrances and restrictions are (i) not materially more restrictive than the terms of the Credit Agreement as in a effect on the Issue Date (as determined in good faith by an Officer of the Issuer) or (ii) customary manner for instruments of such type in the sublettingmarket at such time and will not materially adversely impact the ability of the Issuer to make required payments of principal, assignment interest or transfer of any property premium or asset that is subject to a leaseAdditional Amounts, license or similar contract,if any, on the Notes;
(213) contained in security agreements securing Indebtedness of a Restricted Subsidiary Liens permitted to be incurred under Section 4.13 that limit the extent such encumbrance or restriction restricts the transfer right of the property debtor to dispose of the assets subject to such security agreements orLiens;
(314) pursuant to Purchase Money Indebtedness purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that imposes impose restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained nature described in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person4.09(a)(3);
(xiii15) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in joint venture agreements that restrict the assignment of such and other similar agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only relating solely to such Receivables Facilityjoint venture; and
(xvi16) any encumbrance amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or restriction pursuant to (x) an agreement effecting a Refinancing refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(iclauses (1) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenture.through
Appears in 1 contract
Sources: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) (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 CompanyCompany or any Restricted Subsidiary;
(b2) make any loans or advances to the CompanyCompany or any Restricted Subsidiary; or
(c3) sell, lease or transfer any of its property or assets to the Company, except, in the case of clauses (a), Company or any Restricted Subsidiary;
(b) and (c):The provisions of Section 3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on the Issue Date;
(2) any encumbrance or restriction pursuant to the Notes Documents;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(ii4) any encumbrance or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as in effect or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness Incurred by such Restricted Subsidiary prior to of a Person, entered into on or before the date on which such Restricted Subsidiary Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was otherwise acquired by the CompanyCompany or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(iv5) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
restriction: (v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (2b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrance encumbrances or restriction restricts restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements or
agreements; (3c) pursuant contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to Purchase Money Indebtedness for property acquired which the 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 imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue such agreement prohibits the encumbrance of any transfer of, agreement to transfer, or option or right with respect to any solely the property or assets of the Company or any such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness extend to any other asset or property of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any such Restricted Subsidiary and permitted or the assets or property of another Restricted Subsidiary; or (d) pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(xv6) 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;
(7) 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 of Capital Stock) or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents, contracts and other similar agreements and instruments (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;
(9) any encumbrance or restriction arising or existing under or by reason of a Receivables Facility applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other contractual requirements deposits or net worth imposed by customers;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness of Foreign Subsidiaries permitted to be incurred or issued subsequent to the Issue Date pursuant to the provisions of Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) any encumbrance or restriction of a Receivables Facility permitted pursuant to Section 4.03Subsidiary effected in connection with a Qualified Receivables Financing; PROVIDED provided that such restrictions apply only to such Receivables Facility; andSubsidiary;
(xvi14) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred arising pursuant to an agreement referred or instrument relating to in any Indebtedness permitted to be incurred subsequent to the Issue Date pursuant to the provisions of Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that 3.2 if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith, or this Indenture as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of Section 3.4(b)(14)(ii), either (a) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6;
(16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses above or this clause (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses above or this clause; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are not materially more restrictive taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such predecessor agreements refinancing or amendment, supplement or other modification relates;
(y17) 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 Credit Facility which is no less favorable to the Holders Permitted Investments;
(19) restrictions that are, taken as a whole 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 encumbrances restrictions contained in the Credit Agreement on Indenture), or that the date of 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 ordinary course of business and
Appears in 1 contract
Sources: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyCompany (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);
(b2) make any loans or advances to the CompanyCompany (it being understood that the subordination of loans or advances made to the Company to other Indebtedness Incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(c3) transfer any of its property or assets to the Company, except, Company (it being understood that such transfers shall not include any type of transfer described in the case of clauses clause (a1) or (2) above), (b) and (c):,
(iA) any encumbrance or restriction pursuant to (i) applicable law;
, rule, regulation or order or (ii) any encumbrance or restriction in any agreement with respect to Indebtedness (an agreement, including without limitation the Credit Agreement) as , in effect at or entered into on the Closing Effective Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
(iiiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company or any Restricted Subsidiary (other than Indebtedness Incurred as consideration in or in, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company) and outstanding on such date;
(ivC) any encumbrance or restriction pursuant to an agreement for effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (A) or (B) of this covenant or this clause (C) or contained in any amendment to an agreement referred to in clause (A) or (B) of this covenant or this clause (C); provided, however, that the sale encumbrances and restrictions contained in any such Refinancing agreement or other disposition of amendment, taken as a Restricted Subsidiary or assets that restrict distributions whole, are not materially less favorable (as determined in good faith by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(vCompany) any encumbrance or restriction existing by reason of provisions with respect to the disposition or distribution of assets or property Holders than the encumbrances and restrictions contained in joint venture agreements, asset sale agreements, stock sale agreements and other similar such predecessor agreements;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viiiD) in the case of clause (c3), any encumbrance or restriction
(1i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,;
(2ii) contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages; or
(3iii) pursuant arising or agreed to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer ofbusiness, agreement to transfer, or option or right with respect not relating to any Indebtedness, and that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained thereof in Indebtedness of Foreign Subsidiaries permitted pursuant any manner material to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03thereof;
(xiE) encumbrances any encumbrance or restrictions contained in indentures restriction on cash or other debt instrumentsdeposits or net worth imposed by customers or lessors or required by insurance, facilities surety or arrangements that are not materially more restrictivebonding companies, taken as a whole, than those contained in this Indenture governing each case under contracts entered into in the Notes or the Credit Agreement on the date ordinary course of this Indenturebusiness;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereofF) with respect to a Restricted Subsidiary, any assets encumbrance or other property acquired by the Company or any Restricted Subsidiary (including restriction imposed pursuant to an agreement entered into for the acquisition sale or disposition of a substantial portion of the Capital Stock or assets of a Person)such Restricted Subsidiary pending the closing of such sale or disposition;
(xiiiG) customary restrictions imposed on provisions limiting the transfer ofdisposition or distribution of assets or property or assignment in joint venture agreements, or in licenses related toasset sale agreements, copyrighted or patented materials or other leases, intellectual property licenses, sale-leaseback agreements, stock sale agreements and customary provisions other similar agreements entered into in agreements that restrict the assignment ordinary course of such agreements or any rights thereunder or the use of any such rightsbusiness;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xvH) any encumbrance or restriction existing under or under, by reason of a Receivables Facility or other contractual requirements with respect to Indebtedness Incurred by any Restricted Subsidiary permitted to be Incurred under Section 4.09, provided that the Company determines in good faith at the time such Indebtedness is Incurred that such encumbrance or restriction would not impair the ability of the Company to make payments of interest and principal on the Notes when due;
(I) any encumbrance or restriction in any agreement or instrument of a Receivables Facility permitted pursuant to Section 4.03Subsidiary governing or in connection with a Qualified Receivables Transaction; PROVIDED provided that such restrictions apply only to such Receivables Facility; andSubsidiary or the Receivables that are subject to such Qualified Receivables Transaction;
(xviJ) any encumbrance existing under, by reason of or restriction pursuant with respect to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant by Foreign Subsidiaries permitted to an agreement referred be Incurred under Section 4.09;
(K) existing by reason of any contractual obligation that is reasonably determined by the Company not to in Section 4.05(c)(imaterially adversely affect the ability of the Company to perform its obligations under this Indenture, the Notes, or the Exchange Notes; or
(L) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date existing by reason of this Indenture, the Notes, the Exchange Notes or the Note Guarantees.
Appears in 1 contract
Sources: Indenture (Aecom Technology Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the CompanyCompany (provided that dividend or liquidation priority between classes of Capital Stock, exceptor subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, in the case of clauses (awill not be deemed to constitute such an encumbrance or restriction), (b) and (c):
(i) except any encumbrance or restriction restriction:
(1) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Issue Date, and any amendmentsCredit Facility, modificationsthe Senior Subordinated Indenture, restatementsthis Indenture, renewalsthe Senior Subordinated Notes or the Notes;
(2) pursuant to any agreement or instrument of a Person, extensionsor relating to Indebtedness or Capital Stock of a Person, replacements and refinancings thereof on terms and conditions which Person is acquired by or merged or consolidated with respect to or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such encumbrances and restrictions that are not materially more restrictivePerson, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this Indentureclause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Holders of the Company (other Notes than Indebtedness Incurred as consideration encumbrances and restrictions contained in the Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such date);
(iv4) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to , or the extent such encumbrance assignment or restriction restricts the transfer of the property subject to such security agreements or
any lease, license or other contract, (3B) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness of Foreign Subsidiaries permitted a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(xv5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xviassets) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred imposed pursuant to an agreement referred 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 in Section 4.05(c)(isuch restriction) through pending the closing of such sale or disposition;
(xvi6) by reason of any applicable law, rule, regulation or contained in order, or required by any amendment, modification regulatory authority having jurisdiction over the Company or replacement any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement referred or instrument (A) relating to in any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.05(c)(i407 (i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such predecessor agreements encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any Credit Facility which is no less favorable sale of receivables by a Foreign Subsidiary or (C) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained Financing Disposition by or to or in the Credit Agreement on the date favor of this Indentureany Special Purpose Entity.
Appears in 1 contract
Sources: Indenture (New Sally Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the Company;
Company or a Restricted Subsidiary, (bii) make any loans or advances to the Company; or
Company or any other Restricted Subsidiary or (ciii) transfer any of its property or assets to the CompanyCompany or any other Restricted Subsidiary, exceptexcept for such encumbrances or restrictions existing under or by reason of (a) (x) this Indenture, the Credit Facility or the indenture governing the Senior Discount Notes, in the each case of clauses (a), (b) and (c):
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as in effect or entered into on the Closing Issue Date, and any amendments, modificationsrestatements, renewals, replacements or refinancings thereof; provided, however, that any such amendments, restatements, renewals, extensions, replacements and or refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that or under the Credit Facility or the indenture governing the Senior Discount Notes are not materially more restrictive, when taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness dividend and other payment restrictions, to the Company or any Restricted Subsidiary than those contained in the Credit Facility or such indenture, as the case may be, (or, if more restrictive, than those contained in effect on this Indenture) immediately prior to any such amendment, restatement, renewal, replacement or refinancing, or (y) the indenture relating to any Public Debt issued after the date of this Indenture;
(iii) any encumbrance hereof, which encumbrances or restriction restrictions are not materially more restrictive, when taken as a whole, with respect to a such dividend and other payment restrictions, to the Company or any Restricted Subsidiary pursuant to than those contained in this Indenture, (b) applicable law, (c) any instrument governing Indebtedness or Capital Stock of an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was Acquired Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (other than except to the extent such Indebtedness Incurred as consideration was incurred in connection with or in contemplation ofof such acquisition or in violation of Section 4.13; provided, however, that (1) such restriction is not applicable to any Person, or the transaction properties or series assets of related transactions pursuant any Person, other than the Acquired Person, and (2) the consolidated net income of such Acquired Person for any period prior to which such Restricted Subsidiary became a Restricted Subsidiary or acquisition shall not be taken into account in determining whether such acquisition was otherwise acquired permitted by the Companyterms of this Indenture, (d) and outstanding on such date;
(iv) any encumbrance or restriction pursuant to an agreement for the sale customary non-assignment provisions in leases or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
, (viie) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes only impose restrictions on that property;
the property so acquired, (ixf) encumbrances an agreement for the sale or restrictions that are or were created by virtue disposition of any transfer of, agreement to transfer, or option or right with respect to any property the Capital Stock or assets of the Company or any such Restricted Subsidiary; provided, however, that such restriction is only applicable to such Restricted Subsidiary or assets, as applicable, and such sale or disposition otherwise is permitted under Section 4.17; provided, further, however, that such restriction or encumbrance shall be effective only for a period from the execution and delivery of such agreement through a termination date not otherwise prohibited by later than 180 days after such execution and delivery, or (g) Refinancing Indebtedness permitted under this Indenture;
(x) encumbrances and ; provided, however, that the restrictions contained in the agreements governing such Refinancing Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by are no more restrictive in the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, aggregate than those contained in this Indenture the agreements governing the Notes Indebtedness being refinanced immediately prior to such refinancing. Notwithstanding the foregoing, neither (a) customary provisions restricting subletting or assignment of any lease entered into in the Credit Agreement ordinary course of business, nor (b) Liens permitted under this Indenture, shall in and of themselves be considered a restriction on the date ability of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any applicable Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or assets, as the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenturemay be.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) 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 CompanyCompany or any Restricted Subsidiary;
(b2) make any loans or advances to the CompanyCompany or any Restricted Subsidiary; or
(c3) sell, lease or transfer any of its property or assets to the CompanyCompany or any Restricted Subsidiary, except, 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 case subordination of clauses (a), including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) and (c):The provisions of Section 4.05
(ia) will not prohibit:
(1) any encumbrance or restriction pursuant to applicable law(a) any Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on the Issue Date;
(ii2) any encumbrance or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as in effect or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness Incurred by such Restricted Subsidiary prior to of a Person, entered into on or before the date on which such Restricted Subsidiary Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was otherwise acquired by the CompanyCompany or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary entered into or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (2), if another Person is the Successor Person, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Person;
(iv3) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;restriction:
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,, or the assignment or transfer of any lease, license or other contract;
(2B) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrance encumbrances or restriction restricts restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements agreements; or
(3C) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi4) 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;
(x5) an agreement effecting any encumbrance or restriction with respect to a Refinancing Restricted Subsidiary (or any of Indebtedness Incurred its property or assets) imposed pursuant to an agreement referred entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) customary provisions in Section 4.05(c)(ileases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(7) through encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority, including pursuant to the terms of any license, concession, authorization, franchise, permit or similar arrangement;
(xvi8) 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;
(9) any encumbrance or contained in restriction pursuant to Currency Agreements or Interest Rate Agreements;
(10) any amendment, modification encumbrance or replacement restriction arising pursuant to an agreement referred or instrument (x) relating to in any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.05(c)(i4.06 (other than any refinancing Indebtedness which is subject to Section 4.05(b)(13) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that below) if the encumbrances and restrictions contained in any such Refinancing agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Revolving Credit Facility and the Intercreditor Agreement, together with the Security Documents associated therewith as in effect on the Issue Date or (ii) is customary in comparable financings (as determined in good faith by the Company) or where the Company determines when 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 (as determined in good faith by a responsible financial or chief accounting officer of the Company), or (y) constituting an Additional Intercreditor Agreement;
(11) any encumbrance or restriction existing by reason of any lien permitted under Section 4.09 and the Intercreditor Agreement or any Additional Intercreditor Agreement;
(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; or
(13) any agreement, encumbrance or restriction that extends, renews, refinances or replaces any encumbrance or restriction referred to in Sections 4.05(b)(1) through 4.05(b)(12) above or this Section 4.05(b)(13) or contained in any amendment, supplement or other modification to an agreement referred to in Sections 4.05(b)(1) through 4.05(b)(12) above or replacement this Section 4.05(b)(13); provided, however, that such encumbrances and restrictions contained in any such agreement, encumbrance or restriction are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained so extended, refinanced, replaced, amended, supplemented or modified, or will not adversely affect, in such predecessor agreements any material respect, the Issuer’s ability to make principal or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement interest payments on the date Notes (as determined in good faith by a responsible financial or chief accounting officer of this Indenturethe Company).
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c):
(i) except any encumbrance or restriction restriction:
(1) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Issue Date, and any amendmentsCredit Facility, modificationsthe Existing Indenture, restatementsthe Existing Notes, renewalsthis Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, extensionsor relating to Indebtedness or Capital Stock of a Person, replacements and refinancings thereof on terms and conditions which Person is acquired by or merged or consolidated with respect to or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such encumbrances and restrictions that are not materially more restrictivePerson, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was Incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this Indentureclause (2), if 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, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes the Successor Company;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Holders of the Company (other Notes taken as a whole than Indebtedness Incurred as consideration encumbrances and restrictions contained in the Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such date);
(iv4) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to , or the extent such encumbrance assignment or restriction restricts the transfer of the property subject to such security agreements or
any lease, license or other contract, (3B) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness of Foreign Subsidiaries permitted a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary or (I) pursuant to Hedging Obligations;
(xv5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xviassets) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred imposed pursuant to an agreement referred 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 in Section 4.05(c)(isuch restriction) through pending the closing of such sale or disposition;
(xvi6) by reason of any applicable law, rule, regulation or contained in order, or required by any amendment, modification regulatory authority having jurisdiction over the Company or replacement any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement referred or instrument (A) relating to in any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.05(c)(i407, (i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such predecessor agreements encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any Credit Facility which is no less favorable sale of receivables by a Foreign Subsidiary, (C) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained in the Credit Agreement on the date Financing Disposition to or by any Receivables Entity or (D) relating to Indebtedness of this Indenturea Foreign Subsidiary.
Appears in 1 contract
Sources: First Supplemental Indenture (Graphic Packaging Holding Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall Borrower 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 restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
Borrower, (bii) make any loans or advances to the Company; or
Borrower or (ciii) transfer any of its property or assets to the CompanyBorrower, except, in the case of clauses (a), (b) and (c):
(i) except any encumbrance or restriction pursuant to applicable lawrestriction;
(ii1) any encumbrance pursuant to an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing DateIssue Date (including, and without limitation, the Senior Credit Facility), the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or this Agreement;
(2) pursuant to any amendmentsagreement or instrument of a Person, modificationsor relating to Indebtedness or Capital Stock of a Person, restatementswhich Person is acquired by or merged or consolidated with or into the Borrower or any Restricted Subsidiary, renewalsor which agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation), provided that for purposes of this Indentureclause (2), if 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, as the case may be, by the Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes the Successor Company;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a "Refinancing Agreement") effecting a refinancing of Indebtedness Incurred by pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 6.7 or this clause (3) (an "Initial Agreement") or contained in any amendment, supplement or other modification to an Initial Agreement (an "Amendment"); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Lenders than encumbrances and restrictions contained in the Company (other than Indebtedness Incurred as consideration in Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such dateBorrower);
(iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
, or the assignment or transfer of any lease, license or other contract, (2B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts restricting the transfer of the property or assets subject thereto, (D) pursuant to such security customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements or
of the Borrower or any Restricted Subsidiary, (3E) pursuant to Purchase Money Indebtedness for Obligations that impose encumbrances or restrictions on the property acquired 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 venture and other similar agreements entered into in the ordinary course of business) or (H) that imposes restrictions on that property;
(ix) encumbrances arises or restrictions that are or were created by virtue is agreed to in the ordinary course of any transfer of, agreement to transfer, or option or right with respect to any business and does not detract from the value of property or assets of the Company Borrower or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant manner material to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, Borrower or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xviassets) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred imposed pursuant to an agreement referred 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 in Section 4.05(c)(isuch restriction) through pending the closing of such sale or disposition;
(xvi6) required by any applicable law, rule, regulation or contained in order or by any amendment, modification regulatory authority having jurisdiction over the Borrower or replacement any Restricted Subsidiary or any of their businesses;
(7) pursuant to an agreement referred or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 6.5, if the Borrower determines in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, good faith that the encumbrances and restrictions contained in any the agreements and instruments relating to such Refinancing agreement or amendmentIndebtedness, modification or replacement taken as a whole, are no not materially less favorable to the Holders taken as a whole Lenders than the encumbrances and restrictions contained in such predecessor the agreements and instruments referred to in clause (1) of this Section 6.7, (B) relating to Indebtedness of a Foreign Subsidiary incurred pursuant to clause (b)(i) or (yb)(x) of Section 6.5, (C) relating to a sale of accounts receivable by a Foreign Subsidiary on customary terms (as determined in good faith by the Borrower) or (D) relating to Indebtedness of or a Financing Disposition to or by any Credit Facility which is no less favorable Receivables Entity; or
(8) pursuant to the Holders taken as a whole than the encumbrances contained in the Credit Agreement an agreement or instrument relating to other Indebtedness of NAVL outstanding on the date of this IndentureAgreement or permitted to be Incurred under this Agreement.
Appears in 1 contract
Sources: Loan Agreement (Sirva Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the CompanyCompany (provided that dividend or liquidation priority between classes of Capital Stock, exceptor subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, in the case of clauses (awill not be deemed to constitute such an encumbrance or restriction), (b) and (c):
(i) except any encumbrance or restriction restriction:
(1) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing DateIssue Date or pursuant to any Debt Facility, and this Indenture or the Notes;
(2) pursuant to any amendmentsagreement or instrument of a Person, modificationsor relating to Indebtedness or Capital Stock of a Person, restatementswhich Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, renewalsor which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, extensionsor any other transaction entered into in connection with any such acquisition, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictivemerger or consolidation, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that for purposes of this Indentureclause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any agreement or 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 Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Holders of the Company (other Notes than Indebtedness Incurred as consideration encumbrances and restrictions contained in the Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such date);
(iv4) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of customary 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts agreements entered into in the ordinary course of business;
(vii5) (A) pursuant to any encumbrance agreement or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) 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 to a leasethereto, license or similar contract,
(2B) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness or other obligations of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any a Restricted Subsidiary and permitted to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits, net worth or inventory 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 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, or (I) pursuant to Hedging Obligations or Bank Products Obligations;
(xv6) with respect to any encumbrance agreement for the direct or restriction existing under indirect disposition of Capital Stock, property or assets of any Person, property or assets, imposing restrictions with respect to such Person, Capital Stock, property or assets pending the closing of such sale or disposition;
(7) by reason of a Receivables Facility any applicable law, rule, regulation or other contractual requirements order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of a Receivables Facility permitted pursuant to Section 4.03their businesses; PROVIDED that such restrictions apply only to such Receivables Facility; andor
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred 8) pursuant to an agreement referred or instrument (A) relating to in any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.05(c)(i407 (i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company) or (ii) if such predecessor agreements encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any Credit Facility which is no less favorable sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained Financing Disposition by or to or in the Credit Agreement on the date favor of this Indentureany Receivables Subsidiary.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall Borrowers will not, and shall will not permit any Restricted Subsidiary of any Borrower to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
of any Borrower to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
any Borrower or any Restricted Subsidiary of any Borrower, (bii) make any loans or advances to the Company; or
any Borrower or any Restricted Subsidiary of any Borrower or (ciii) transfer any of its property or assets to the Companyany Borrower or any Restricted Subsidiary of any Borrower, except, in the case of clauses (a), (b) and (c):
(i) except any encumbrance or restriction restriction:
(a) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) instrument as in effect at or entered into on the Closing Datedate hereof, including without limitation the Cash Flow Term Facility and the Subordinated Notes Purchase Agreement;
(b) pursuant to any amendmentsagreement or instrument of a Person, modificationsor relating to Indebtedness or Stock of a Person, restatementswhich Person is acquired by or merged or consolidated with or into the U.S. Parent Borrower or any Restricted Subsidiary, renewalsor which agreement or instrument is assumed by the U.S. Parent Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of this Indenturesuch acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation) and not applying to the U.S. Parent Borrower or any of the Restricted Subsidiaries (other than to any such Person or assets so acquired);
(iiic) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating or instrument replacing or contained in any amendment, supplement or other modification to an agreement referred to in clause (a) or (b) above; provided, however, that the encumbrances and restrictions contained in any Indebtedness Incurred by such Restricted Subsidiary prior replacement agreement or amendment taken as a whole are not materially less favorable to the date on which Lenders than encumbrances and restrictions contained in such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in or in contemplation of, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company) and outstanding on such dateoriginal agreement;
(ivd) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
, or the assignment or transfer of any lease, license or other contract, (2ii) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the U.S. Parent Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (iii) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts restricting the transfer of the property or assets subject thereto, (iv) pursuant to customary provisions restricting dispositions of Real Estate interests set forth in any reciprocal easement agreements of the U.S. Parent Borrower or any Restricted Subsidiary, or (v) pursuant to purchase money Indebtedness that impose encumbrances or restrictions on the property or assets so acquired;
(e) 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 Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such security agreements or
(3restriction) pursuant to Purchase Money Indebtedness for property acquired in pending the ordinary course closing of business that imposes restrictions on that propertysuch sale or disposition;
(ixf) encumbrances or restrictions that are or were created by virtue reason of any transfer ofapplicable law, agreement to transferrule, regulation or order, or option or right with respect to required by any property or assets of regulatory authority having jurisdiction over the Company U.S. Parent Borrower or any Restricted Subsidiary not otherwise prohibited by this Indentureor any of their businesses;
(xg) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred or instrument (i) relating to in any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to Section 4.05(c)(i) through (xvi) or contained in any amendment9.1, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole Lenders than the encumbrances and restrictions contained in the agreements set forth in clause (a) above (as determined in good faith by the U.S. Parent Borrower);
(h) restrictions and conditions on any Foreign Subsidiary by the terms of any Indebtedness of such predecessor Foreign Subsidiary permitted to be incurred hereunder;
(i) contractual obligations binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary, so long as such contractual obligations were not entered into in contemplation of such Person becoming a Restricted Subsidiary;
(j) customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under Section 9.5 and applicable solely to such joint venture;
(k) negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 9.1 but only if such negative pledge or (y) any Credit Facility which is no less favorable restriction expressly permits Liens for the benefit of the Administrative Agent and/or the Collateral Agent and the Lenders with respect to the Holders taken as credit facilities established hereunder and the Obligations under the Credit Documents on a whole than the encumbrances contained senior basis and without a requirement that such holders of such Indebtedness be secured by such Liens equally and ratably or on a junior basis;
(l) restrictions on cash, other deposits or net worth imposed by customers under contracts entered into in the Credit Agreement on ordinary course of business;
(m) Secured Indebtedness otherwise permitted to be incurred under Sections 9.1(f) and (j) that limit the date right of this Indenturethe obligor to dispose of the assets securing such Indebtedness; and
(n) customary provisions in leases, subleases, licenses, sublicenses and other contracts restricting the assignment thereof, in each case entered into in the ordinary course of business.
Appears in 1 contract
Sources: Abl Credit Agreement (Univar Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyCompany or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(b2) make any loans or advances to the CompanyCompany or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(c3) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c):Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture, including, without limitation, this Indenture, the Initial Securities, the Exchange Securities, the Subsidiary Guarantees and the Senior Secured Credit Agreement (and related documentation) in effect on such date;
(iiiii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by such a Restricted Subsidiary prior to on or before the date on which such Restricted Subsidiary was acquired by the Company (other than Capital Stock or Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the CompanyCompany or in contemplation of the transaction) and outstanding on such datedate 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;
(iviii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement for effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the sale encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect, taken as a whole, to the Holders of the Securities, in the reasonable judgment of the Company’s Board of Directors or other disposition senior management, than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or assets that restrict distributions by that was merged into a Restricted Subsidiary or distributions of those assets pending the sale or other dispositionSubsidiary, whichever is applicable;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viiiiv) in the case of clause (c)3) of the first paragraph of this Section 3.6, any encumbrance or restriction:
(1a) that restricts in 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;
(2b) 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 encumbrance encumbrances or restriction restricts restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements agreements; or
(3c) pursuant to Purchase Money Indebtedness customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that imposes impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.6 on the property so acquired;
(vi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that propertyare subject to such restriction) pending the closing of such sale or disposition;
(vii) any customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment” or in Employee Partnerships;
(viii) net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(ix) encumbrances or restrictions that are arising or were created existing by virtue reason of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company applicable law or any Restricted Subsidiary not otherwise prohibited by this Indenture;applicable rule, regulation or order; and
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or debt instruments or other debt instruments, facilities or arrangements Incurred by Subsidiary Guarantors in accordance with Section 3.3 that are not materially more restrictive, taken as a whole, than those contained applicable to the Company in either this Indenture governing the Notes or the Senior Secured Credit Agreement on the date of this Indenture;
Issue Date (xii) which results in encumbrances and or restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect comparable to any assets or other property acquired by those applicable to the Company or any at a Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Personlevel);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenture.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective effective, or enter into any agreement with any Person that would cause to become effective, any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Company;
Company or any other Restricted Subsidiary, (b) make any loans or advances to the Company; or
Company or any other Restricted Subsidiary or (c) transfer any of its property or assets Property to the Company, except, in the case of Company or any other Restricted Subsidiary. The foregoing limitations will not apply (i) with respect to clauses (a), (b) and (c):
(i) any encumbrance or restriction pursuant ), to applicable law;
(ii) any encumbrance or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as in effect or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as (A) in existence under or by reason of any agreements in effect on the date Issue Date, (B) relating to Debt of this Indenture;
(iii) any a Restricted Subsidiary and existing at such Restricted Subsidiary at the time it became a Restricted Subsidiary if such encumbrance or restriction was not created in connection with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in or in contemplation of, anticipation of the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company, (C) and outstanding on such date;
(iv) any encumbrance or restriction pursuant relating to an agreement for the sale or other disposition Debt of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any so long as such encumbrance or restriction existing by reason of provisions with respect is no less favorable to the disposition or distribution holders of assets or property the Securities than those under the Credit Facility as in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions effect on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
Issue Date, (viiiD) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject relating to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness Debt of a Restricted Subsidiary which has fully and unconditionally guaranteed, by supplemental indenture in form satisfactory to the extent Trustee, executed and delivered to the Trustee by such encumbrance Restricted Subsidiary, the due and punctual performance and observance of all the obligations (financial or restriction restricts the transfer otherwise) of the property subject Company under this Indenture and the Securities, provided that such guarantee may be subordinated to senior Debt of such security agreements or
Restricted Subsidiary to the same extent and on the same terms as the Securities are subordinated to Senior Debt of the Company and may provide for the release of such Guarantee upon the discharge of such Debt, (3E) pursuant relating to Purchase Money Indebtedness borrowings under a foreign currency credit facility established for property acquired in the ordinary course benefit of business a Restricted Subsidiary organized outside the laws of the United states of America or any State thereof or the District of Columbia, provided that imposes such encumbrances and restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right apply only with respect to such Restricted Subsidiary and only if an event 57 49 of default has occurred and is continuing under such credit facility and are otherwise customary for similar foreign currency credit facilities, (F) relating to any property special purpose, bankruptcy remote Wholly Owned Subsidiary formed for the purpose of borrowing against receivables or assets inventory of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign its Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xviG) any encumbrance or restriction pursuant to (x) an agreement effecting a which result from the Refinancing of Indebtedness Debt Incurred pursuant to an agreement referred to in Section 4.05(c)(ithe immediately preceding clauses (i)(A) through and (xviB) above or contained in any amendmentclauses (ii)(A) and (B) below, modification provided such encumbrance or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which restriction is no less favorable to the Holders taken holders of Securities than those under the agreement evidencing the Debt so Refinanced, and (ii) with respect to clause (c) only, to encumbrances and restrictions (A) that limit the right of the debtor to transfer or dispose of the Property securing such Debt, provided that such Debt is permitted to be Incurred and secured pursuant to Sections 4.03 and 4.05, (B) in connection with an acquisition of Property, so long as a whole than such encumbrance or restriction relates solely to the encumbrances Property so acquired and was not created in connection with or in anticipation of such acquisition, (C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder or (D) customary restrictions contained in asset sale agreements limiting the Credit Agreement on transfer of such Property pending the date closing of this Indenturesuch sale.
Appears in 1 contract
Sources: Indenture (Dii Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) 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 CompanyCompany or any Restricted Subsidiary;
(b2) make any loans or advances to the CompanyCompany or any Restricted Subsidiary; or
(c3) sell, lease or transfer any of its property or assets to the Company, except, in the case of clauses (a), Company or any Restricted Subsidiary;
(b) and (c):The provisions of Section 3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Issue Date;
(2) any encumbrance or restriction pursuant to the Note Documents;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(ii4) any encumbrance or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as in effect or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness Incurred by such Restricted Subsidiary prior to of a Person, entered into on or before the date on which such Restricted Subsidiary Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was otherwise acquired by the CompanyCompany or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(iv5) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;restriction:
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(2ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrance encumbrances or restriction restricts restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements oragreements;
(3iii) pursuant contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to Purchase Money Indebtedness for property acquired which the 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 imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue such agreement prohibits the encumbrance of any transfer of, agreement to transfer, or option or right with respect to any solely the property or assets of the Company or any such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness extend to any other asset or property of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any such Restricted Subsidiary and permitted or the assets or property of another Restricted Subsidiary; or
(iv) pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi6) 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;
(x7) an agreement effecting a Refinancing of Indebtedness Incurred any encumbrance or restriction imposed pursuant to an agreement referred entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness of Foreign Subsidiaries permitted to be incurred or issued subsequent to the Issue Date pursuant to the provisions of Section 4.05(c)(i3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) through restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xvi14) any encumbrance or contained in any amendment, modification or replacement restriction arising pursuant to an agreement referred or instrument relating to in any Indebtedness permitted to be incurred subsequent to the Issue Date pursuant to Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that 3.2 if the encumbrances and restrictions contained in any such Refinancing agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith, or this Indenture as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of clause (ii), either (a) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6; or
(16) 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 the clauses above or this clause (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses above or replacement this clause; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such predecessor agreements refinancing or amendment, supplement or other modification relates (y) any Credit Facility which is no less favorable to as determined in good faith by the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this IndentureCompany).
Appears in 1 contract
Sources: Indenture (TripAdvisor, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company;
Company (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Capital Stock shall be deemed to not be a restriction on the ability to pay dividends or make other distributions on Capital Stock), (b) make any loans or advances to the Company; or
Company or (c) transfer any of its property or assets to the Company, except, in the case of :
(1) with respect to clauses (a), (b) and (c):),
(iA) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Issue Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on including the date of this IndentureCredit Agreement;
(iiiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company) and outstanding on such date;
(ivC) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenture.in
Appears in 1 contract
Sources: Indenture (Us Concrete Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company;
, (b) make any loans or advances to the Company; or
Company or (c) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c)::
(i1) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of Issue Date (including this Indenture, the Credit Facilities and the Intercreditor Agreement);
(iii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company) and outstanding on such date;
(iv3) any encumbrance or restriction pursuant to an any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or Refinancings of the Indebtedness referred to in any of the foregoing clauses and restrictions contained in Indebtedness incurred after the date hereof in accordance with the terms of this Indenture; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or Refinancings are not materially more restrictive with respect to such dividend and other payment restrictions than those contained in the applicable instrument governing such Indebtedness as in effect on the date of this Indenture; provided, further, that, with respect to any agreement for governing such other Indebtedness, the sale provisions relating to such encumbrance or other disposition of a Restricted Subsidiary or assets that restrict distributions restriction are no less favorable to the Company in any material respect as determined by that Restricted Subsidiary or distributions of those assets pending the sale or other dispositionCompany in its reasonable and good faith judgment than the provisions contained in the Credit Facilities as in effect on the Issue Date;
(v4) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii5) any such encumbrance or restriction existing by reason consisting of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03customary non-assignment provisions in contracts or in leases governing leasehold interest and in intellectual property contracts and licenses;
(viii6) in any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the case sale or disposition of clause assets (c), any encumbrance including Capital Stock) of such Restricted Subsidiary permitted by this Indenture pending the closing of such sale or restrictiondisposition;
(17) that restricts in a customary manner the sublettingany restriction arising under applicable law, assignment regulation or transfer of any property or asset that is subject to a lease, license or similar contract,order;
(2) 8) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts restrictions restrict the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that propertyor mortgages;
(ix9) encumbrances or restrictions that are or were created by virtue on the transfer of any transfer of, agreement to transfer, or option or right with respect assets subject to any property or assets Lien permitted under this Indenture imposed by the holder of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;such Lien; and
(x10) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements comparable financings and, as determined by management of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing in its reasonable and good faith judgment, will not materially impair the Company’s ability to make payments as required under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this IndentureNotes.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
: (a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
Company or any Restricted Subsidiary (bit being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock); (2) make any loans or advances to the CompanyCompany or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
or (c3) transfer any of its property or assets to the Company, except, in the case of clauses (a), Company or any Restricted Subsidiary.
(b) and (c):
The preceding provisions will not prohibit: (i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing DateIssue Date including, without limitation, this Indenture and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as the Senior Credit Agreement in effect on the date of this Indenture;
Issue Date; (iiiii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by such a Restricted Subsidiary prior to on or before the date on which such Restricted Subsidiary was acquired by the Company (other than Capital Stock or Indebtedness Incurred as consideration in in, or in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the CompanyCompany or in contemplation of the transaction) and outstanding on such date;
; provided that any such encumbrance or restriction may not extend to other Restricted Subsidiaries or assets of the Company; (iviii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement for effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of provisions encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the disposition Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or distribution (ii) of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions this paragraph on the transfer of assets that are Issue Date or the subject of date such Restricted Subsidiary became a Capitalized Lease Obligation permitted under Section 4.03;
Restricted Subsidiary, whichever is applicable; (viiiiv) in the case of clause (c)3) of this Section 3.7, any encumbrance or restriction
: (1a) that restricts in 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; (2b) contained in mortgages, pledges or other security agreements permitted under the Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrance encumbrances or restriction restricts restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements or
agreements; or (3c) pursuant to Purchase Money Indebtedness customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary; (v)
(a) purchase money obligations for property and (b) customary provisions contained in leases and other similar agreements, in each case, acquired in the ordinary course of business and that imposes restrictions on that property;
(ix) impose encumbrances or restrictions that are of the nature described in clause (3) of this Section 3.7 on the property so acquired; (vi) any Purchase Money Note or were created by virtue of any transfer of, agreement to transfer, other Indebtedness or option or right contractual requirements Incurred with respect to a Qualified Receivables Transaction; (vii) any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) restriction with respect to any assets or other property acquired by the Company or any a Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder of its property or the use of any such rights;
(xivassets) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred imposed pursuant to an agreement referred 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; (viii) customary provisions in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances joint venture agreements and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor other similar agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained entered into in the Credit Agreement ordinary course of business; (ix) restrictions on the date of this Indenture.cash or other
Appears in 1 contract
Sources: Indenture (Tower Automotive Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyCompany or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(b2) make any loans or advances to the CompanyCompany or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(c3) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c):Company or any Restricted Subsidiary. The preceding provisions shall not prohibit:
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Datedate of this Indenture and identified in an annex to this Indenture, including, without limitation, this Indenture and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as the Senior Secured Credit Agreement in effect on the date of this Indenturesuch date;
(iiiii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by such a Restricted Subsidiary prior to on or before the date on which such Restricted Subsidiary was acquired by the Company (other than Capital Stock or Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the CompanyCompany or in contemplation of the transaction) and outstanding on such date, 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;
(iviii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement for effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the sale encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or other disposition (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other dispositionSubsidiary, whichever is applicable;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viiiiv) in the case of clause (c)3) of the first paragraph of this covenant, any encumbrance or restriction:
(1a) that restricts in 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;
(2b) 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 encumbrance encumbrances or restriction restricts restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements agreements; or
(3c) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(xva) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this covenant on the property so acquired;
(vi) any encumbrance restriction with respect to a Restricted Subsidiary (or restriction existing under any of its property or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted assets) imposed pursuant to Section 4.03; PROVIDED 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 such restrictions apply only are subject to such Receivables Facilityrestriction) pending the closing of such sale or disposition;
(vii) net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business; and
(xviviii) encumbrances or restrictions arising or existing by reason of applicable law or any encumbrance applicable rule, regulation or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indentureorder.
Appears in 1 contract
Sources: Indenture (VI Acquisition Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the CompanyCompany (provided that dividend or liquidation priority between classes of Capital Stock, exceptor subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, in the case of clauses (awill not be deemed to constitute such an encumbrance or restriction), (b) and (c):
(i) except any encumbrance or restriction restriction:
(1) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Issue Date, and any amendmentsCredit Facility, modificationsthe Intercreditor Agreement, restatementsthe Notes Collateral Documents, renewalsthis Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, extensionsor relating to Indebtedness or Capital Stock of a Person, replacements and refinancings thereof on terms and conditions which Person is acquired by or merged or consolidated with respect to or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such encumbrances and restrictions that are not materially more restrictivePerson, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this Indentureclause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Holders of the Company (other Notes than Indebtedness Incurred as consideration encumbrances and restrictions contained in the Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such date);
(iv4) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to , or the extent such encumbrance assignment or restriction restricts the transfer of the property subject to such security agreements or
any lease, license or other contract, (3B) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness of Foreign Subsidiaries permitted a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(xv5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xviassets) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred imposed pursuant to an agreement referred 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 in Section 4.05(c)(isuch restriction) through pending the closing of such sale or disposition;
(xvi6) by reason of any applicable law, rule, regulation or contained in order, or required by any amendment, modification regulatory authority having jurisdiction over the Company or replacement any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement referred or instrument (A) relating to in any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.05(c)(i407 (i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such predecessor agreements encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any Credit Facility which is no less favorable sale of receivables by a Foreign Subsidiary or (C) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained Financing Disposition by or to or in the Credit Agreement on the date favor of this Indentureany Special Purpose Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyCompany or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(b2) make any loans or advances to the CompanyCompany or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(c3) transfer any of its property or assets to the Company, except, Company or any Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) above). The provisions of the case of clauses (a), (b) and (c):preceding paragraph will not prohibit:
(i) any encumbrance or restriction pursuant to applicable lawan agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture, the Securities, the Exchange Securities, the Subsidiary Guarantees, the Collateral Documents, the Intercreditor Agreement and the Senior Secured Credit Agreement (and related documentation) in effect on such date;
(ii) any encumbrance or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as in effect or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by such Restricted Subsidiary prior to Person on or before the date on which such Person became a Restricted Subsidiary or was acquired by by, merged into or consolidated with the Company or a Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was otherwise acquired by by, merged into or consolidated with the CompanyCompany or in contemplation of the transaction) and outstanding on such date, provided that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and that, in the case of Indebtedness, was permitted to be Incurred pursuant to this Indenture;
(iviii) any encumbrance or restriction pursuant to an agreement for effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the sale encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect, taken as a whole, to the Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in clause (i) or other disposition (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(iv) in the case of clause (3) of the first paragraph of this Section 3.4, Liens permitted to be incurred under the provisions of Section 3.6;
(a) purchase money obligations or mortgage financings for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 on the property so acquired;
(vi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets are subject to such restriction) pending the closing of such sale or other disposition;
(vvii) any encumbrance or restriction existing by reason of customary provisions with respect relating to the disposition or distribution of assets or property in joint venture agreements, asset sale sales agreements, stock sale agreements and other similar agreements;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts agreements entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) net worth provisions in leases and other agreements and provisions restricting cash or other deposits in agreements entered into by the case of clause (c), Company or any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that propertybusiness;
(ix) encumbrances or restrictions that are arising or were created existing by virtue reason of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company applicable law or any Restricted Subsidiary not otherwise prohibited by this Indentureapplicable rule, regulation or order;
(x) encumbrances and or restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant indentures or debt instruments or other debt arrangements Incurred or Preferred Stock issued by Subsidiary Guarantors in accordance with Section 3.2, that are not more restrictive, taken as a whole, than those applicable to Section 4.03 or industrial revenue or similar bonds Incurred by the Company in either this Indenture or any the Senior Secured Credit Agreement on the Issue Date (which results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary and permitted pursuant to Section 4.03level);
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities instruments or debt arrangements Incurred or Preferred Stock issued by Restricted Subsidiaries that are not materially more restrictiveSubsidiary Guarantors subsequent to the Issue Date pursuant to clauses (5), taken as a whole(12), than those (13) or (14) of the second paragraph of Section 3.2; provided that such encumbrances and restrictions contained in this Indenture governing any agreement or instrument will not materially affect the Notes Company’s ability to make anticipated principal or the Credit Agreement interest payments on the date Securities (as determined by the Board of this IndentureDirectors of the Company);
(xii) encumbrances and or restrictions on the date of acquisition (and not Incurred contained in contemplation thereof) with respect to any assets customary non-assignment provisions in leases, contracts, licenses or other agreements entered into in the ordinary course of business; and
(xiii) encumbrances or restrictions arising or agreed to in the ordinary course of business, not relating to Indebtedness, that do not, individually or in the aggregate, detract from the value of property acquired by the Company or assets of Libbey Glass or any Restricted Subsidiary (including pursuant thereof in any manner material to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company Libbey Glass or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenture.
Appears in 1 contract
Sources: Indenture (Libbey Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall Borrower will not, and shall will not permit any Material Restricted Subsidiary to, to create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
Borrower, (bii) make any loans or advances to the Company; or
Borrower or (ciii) transfer any of its property or assets to the CompanyBorrower (provided that dividend or liquidation priority between classes of Capital Stock, exceptor subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, in the case of clauses (awill not be deemed to constitute such an encumbrance or restriction), (b) and (c):
(i) except any encumbrance or restriction restriction:
(a) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Date, any Credit Facility (including without limitation, the Revolving Facility), the Senior Interim Loan Facility, the Existing Notes Indenture and the Existing Notes;
(b) pursuant to any amendmentsagreement or instrument of a Person, modificationsor relating to Indebtedness or Capital Stock of a Person, restatementswhich Person is acquired by or merged or consolidated with or into the Borrower or any Restricted Subsidiary, renewalsor which agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this Indenturesubsection 7.9(b), if a Person other than the Borrower is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(iiic) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in subsections 7.9(a) or (b) above or this subsection 7.9(c) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Lenders than encumbrances and restrictions contained in the Company (other than Indebtedness Incurred as consideration in Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such dateBorrower);
(iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to , or the extent such encumbrance assignment or restriction restricts the transfer of the property subject to such security agreements or
any lease, license or other contract, (3ii) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company Borrower or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenture.Agreement,
Appears in 1 contract
Sources: Credit Agreement (Servicemaster Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall Borrower will not, and shall will not permit any Material Restricted Subsidiary to, to create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
Borrower, (bii) make any loans or advances to the Company; or
Borrower or (ciii) transfer any of its property or assets to the CompanyBorrower (provided that dividend or liquidation priority between classes of Capital Stock, exceptor subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, in the case of clauses (awill not be deemed to constitute such an encumbrance or restriction), (b) and (c):
(i) except any encumbrance or restriction restriction:
(a) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Date, any Credit Facility (including without limitation, the Revolving Facility), the Senior Interim Loan Facility, the Existing Notes Indenture and the Existing Notes;
(b) pursuant to any amendmentsagreement or instrument of a Person, modificationsor relating to Indebtedness or Capital Stock of a Person, restatementswhich Person is acquired by or merged or consolidated with or into the Borrower or any Restricted Subsidiary, renewalsor which agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this Indenturesubsection 7.9(b), if a Person other than the Borrower is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(iiic) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in subsections 7.9(a) or (b) above or this subsection 7.9(c) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Lenders than encumbrances and restrictions contained in the Company (other than Indebtedness Incurred as consideration in Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such dateBorrower);
(iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
, or the assignment or transfer of any lease, license or other contract, (2ii) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (iii) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts restricting the transfer of the property or assets subject thereto, (iv) pursuant to such security customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements or
of the Borrower or any Restricted Subsidiary, (3v) pursuant to Purchase Money Indebtedness for Obligations that impose encumbrances or restrictions on the property acquired or assets so acquired, (vi) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (vii) 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, (viii) that imposes restrictions on that property;
(ix) encumbrances arises or restrictions that are or were created by virtue is agreed to in the ordinary course of any transfer of, agreement to transfer, or option or right with respect to any business and does not detract from the value of property or assets of the Company Borrower or any Restricted Subsidiary not otherwise prohibited by this Indenturein any manner material to the Borrower or such Restricted Subsidiary, or (ix) pursuant to Hedging Obligations;
(xe) encumbrances and restrictions contained in Indebtedness with respect to a Restricted Subsidiary (or any of Foreign Subsidiaries permitted its property or assets) imposed pursuant to Section 4.03 an agreement entered into for the direct or industrial revenue indirect sale or similar bonds Incurred 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;
(f) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company Borrower or any Restricted Subsidiary and permitted pursuant to Section 4.03;or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary or Home Warranty Subsidiary; or
(xig) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred or instrument (i) relating to in Section 4.05(c)(iany Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to subsection 7.1, (A) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole Lenders than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Borrower), or (B) if such predecessor agreements 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 either (x) the Borrower determines in good faith that such encumbrance or restriction will not materially affect the Borrower’s ability to make principal or interest payments on the Term Loans and Reimbursement Obligations owing under the LC Facility or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (ii) relating to any Credit Facility which is no less favorable sale of receivables by or Indebtedness of a Foreign Subsidiary or (iii) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained Financing Disposition by or to or in the Credit Agreement on the date favor of this Indentureany Special Purpose Entity.
Appears in 1 contract
Sources: Credit Agreement (Servicemaster Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyCompany or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(b2) make any loans or advances to the CompanyCompany or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(c3) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c):Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Datedate of this Indenture and identified in Schedule 3.4 to this Indenture, including, without limitation, this Indenture, the Collateral Documents and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as the Working Capital Facility in effect on the date of this Indenturesuch date;
(iiiii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by such a Restricted Subsidiary prior to on or before the date on which such Restricted Subsidiary was acquired by the Company (other than Capital Stock or Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the CompanyCompany or in contemplation of the transaction) and outstanding on such date; 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;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (cSection 3.4(3), any encumbrance or restriction:
(1a) that restricts in 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;
(2b) 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 encumbrance encumbrances or restriction restricts restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements agreements; or
(3c) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(xva) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in Section 3.4(3) on the property so acquired;
(vi) any encumbrance restriction with respect to a Restricted Subsidiary (or restriction existing under any of its property or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted assets) imposed pursuant to Section 4.03; PROVIDED 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 such restrictions apply only are subject to such Receivables Facilityrestriction) pending the closing of such sale or disposition;
(vii) 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;
(viii) net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business; and
(xviix) encumbrances or restrictions arising or existing by reason of applicable law or any encumbrance applicable rule, regulation or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indentureorder.
Appears in 1 contract
Sources: Indenture (Coastal Paper CO)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company Borrower 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 restriction on the ability right of any Restricted Subsidiary to:
(a1) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the CompanyBorrower or any other Restricted Subsidiary;
(b2) make any loans or advances to the CompanyBorrower or any other Restricted Subsidiary; or
(c3) transfer any of its property or assets Property to the CompanyBorrower or any other Restricted Subsidiary.
(b) The foregoing limitations will not apply:
(1) with respect to clauses (1), except, in the case (2) and (3) of clauses clause (a), (b) and (c):to restrictions
(iA) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as in effect or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;Effective Date,
(iiiB) any encumbrance or restriction with respect relating to Debt of a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such and existing at the time it became a Restricted Subsidiary prior to the date on which if such Restricted Subsidiary restriction was acquired by the Company (other than Indebtedness Incurred as consideration not created in connection with or in contemplation of, anticipation of the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company) and outstanding on such date;
(iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contractBorrower,
(2C) contained created in security agreements securing Indebtedness of a Restricted Subsidiary to connection with any Receivables Facility that, in the extent such encumbrance or restriction restricts the transfer good faith determination of the property subject Board of Directors of the Borrower, are necessary or advisable to effect such security agreements Receivables Facility, or
(3D) pursuant to Purchase Money Indebtedness for property acquired in that result from the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred Debt incurred pursuant to an agreement referred to in Section 4.05(c)(i) through clause (xvi1)(A) or contained (B) above or in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(iclause (2)(A) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (yB) any Credit Facility which below, provided such restriction is no less favorable to the Holders taken Lenders than those under the agreement evidencing the Debt so Refinanced; and
(2) with respect to clause (a)(3) only, to restrictions
(A) relating to Debt that is permitted to be incurred and secured pursuant to Sections 6.05 and 6.08 that limit the right of the debtor to dispose of the Property securing such Debt,
(B) encumbering Property at the time such Property was acquired by the Borrower or any Restricted Subsidiary, so long as a whole than such restriction relates solely to the encumbrances Property so acquired and was not created in connection with or in anticipation of such acquisition,
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder or
(D) customarily contained in asset sale agreements limiting the Credit Agreement on transfer of such Property pending the date closing of this Indenturesuch sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any such Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations obligation owed to the Company;
Company or any Restricted Subsidiary, (bii) make any loans or advances to the Company; or
Company or any Restricted Subsidiary or (ciii) transfer any of its property or assets to the Company, Company or any Restricted Subsidiary; except, in the case of clauses :
(a), (b) and (c):
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Date, including this Agreement and the Senior Bank Agreement, or pursuant to the Indenture, the Exchange Notes or any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this IndentureTake-Out Debt;
(iiib) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Company or was otherwise acquired by the Company) and outstanding on such date;
(ivc) any encumbrance or restriction pursuant to an agreement for effecting a refinancing, renewal, extension, refunding, restructuring or replacement of Indebtedness Incurred pursuant to an agreement referred to in clauses (a), (b), (e) or this clause (c) or contained in any amendment to an agreement referred to in clauses (a), (b), (e) or this clause (c); provided, however, that the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of provisions encumbrances and restrictions with respect to such Restricted Subsidiary contained in any of such refinancing agreement or amendment are, as a whole, no less favorable to the disposition or distribution of assets or property Lenders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in joint venture agreements, asset sale agreements, stock sale agreements and other similar such agreements;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viiid) in the case of clause (c)iii) above, any encumbrance or restriction
restriction (1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
, or the assignment or transfer of any such lease, license or other contract, (2) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrance encumbrances or restriction restricts restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements or
or (3) pursuant to Purchase Money Indebtedness customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(e) purchase money obligations for property acquired in the ordinary course of business that imposes impose encumbrances or restrictions of the nature described in clause (iii) above on that propertythe property so acquired;
(ixf) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; and
(g) encumbrances or restrictions that are arising or were created existing by virtue reason of any transfer ofapplicable law, agreement to transfer, regulation or option or right with respect to any property or assets of order. Nothing contained in this Section 6.5 shall prevent the Company or any Restricted Subsidiary not from incurring, creating, assuming or suffering to exist any Liens otherwise prohibited by permitted under Section 6.6 of this Indenture;
(x) encumbrances and restrictions contained in Indebtedness Agreement that limit the right of Foreign Subsidiaries permitted pursuant the chargor to Section 4.03 or industrial revenue or similar bonds Incurred by dispose of the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements assets that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment subject of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this IndentureLien.
Appears in 1 contract
Sources: Senior Working Capital Credit Agreement (Primacom Ag)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyCompany or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(b2) make any loans or advances to the CompanyCompany or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(c3) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c):Company or any Restricted Subsidiary. The preceding provisions shall not prohibit:
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Datedate of this Indenture and identified in an annex to this Indenture, including, without limitation, this Indenture and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as the Senior Secured Credit Agreement in effect on the date of this Indenturesuch date;
(iiiii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by such a Restricted Subsidiary prior to on or before the date on which such Restricted Subsidiary was acquired by the Company (other than Capital Stock or Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the CompanyCompany or in contemplation of the transaction) and outstanding on such date, 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;
(iviii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement for effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the sale encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or other disposition (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other dispositionSubsidiary, whichever is applicable;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viiiiv) in the case of clause (c)3) of the first paragraph of this covenant, any encumbrance or restriction:
(1a) that restricts in 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;
(2b) 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 encumbrance encumbrances or restriction restricts restrictions restrict the transfer of the property 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
(3d) pursuant to Purchase Money Indebtedness contained in any Permitted Lien;
(a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that imposes impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this covenant on the property so acquired;
(vi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that propertyare subject to such restriction) pending the closing of such sale or disposition;
(vii) customary provisions in joint venture agreement and other similar agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(viii) net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business; and
(ix) encumbrances or restrictions that are arising or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility applicable law or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance applicable rule, regulation or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indentureorder.
Appears in 1 contract
Sources: Indenture (Cornell Companies Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c):
(i) except any encumbrance or restriction restriction:
(1) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Issue Date, and any amendmentsCredit Facility, modificationsthe Existing Indentures, restatementsthe Existing Notes, renewalsthis Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, extensionsor relating to Indebtedness or Capital Stock of a Person, replacements and refinancings thereof on terms and conditions which Person is acquired by or merged or consolidated with respect to or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such encumbrances and restrictions that are not materially more restrictivePerson, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was Incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this Indentureclause (2), if 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, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes the Successor Company;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Holders of the Company (other Notes taken as a whole than Indebtedness Incurred as consideration encumbrances and restrictions contained in the Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such date);
(iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to , or the extent such encumbrance assignment or restriction restricts the transfer of the property subject to such security agreements or
any lease, license or other contract, (3B) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness of Foreign Subsidiaries permitted a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary or (I) pursuant to Hedging Obligations;
(xv5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xviassets) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred imposed pursuant to an agreement referred 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 in Section 4.05(c)(isuch restriction) through pending the closing of such sale or disposition;
(xvi6) by reason of any applicable law, rule, regulation or contained in order, or required by any amendment, modification regulatory authority having jurisdiction over the Company or replacement any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement referred or instrument (A) relating to in any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.05(c)(i407, (i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such predecessor agreements encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any Credit Facility which is no less favorable sale of receivables by a Foreign Subsidiary, (C) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained in the Credit Agreement on the date Financing Disposition to or by any Receivables Entity or (D) relating to Indebtedness of this Indenturea Foreign Subsidiary.
Appears in 1 contract
Sources: Supplemental Indenture (Graphic Packaging Holding Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) 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 CompanyCompany or any Restricted Subsidiary;
(b2) make any loans or advances to the CompanyCompany or any Restricted Subsidiary; or
(c3) sell, lease or transfer any of its property or assets to the CompanyCompany or any Restricted Subsidiary, except, 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 case subordination of clauses (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
b) The provisions of paragraph (a), (b) and (c):above will not prohibit:
(i1) any encumbrance or restriction pursuant to applicable law;
(iia) any encumbrance Credit Facility or restriction (b) any other agreement or instrument, in any agreement with respect to Indebtedness (including the Credit Agreement) as each case, in effect at or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
(iii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness Incurred by such Restricted Subsidiary prior to of a Person, entered into on or before the date on which such Restricted Subsidiary Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was otherwise acquired by the CompanyCompany or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary entered into or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (2), if another Person is the Successor Person, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Person;
(iv3) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;restriction:
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) A. that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,, or the assignment or transfer of any lease, license or other contract;
(2) B. contained in mortgages, pledges, charges or other security agreements permitted under this Agreement or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Agreement to the extent such encumbrance encumbrances or restriction restricts restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements agreements; or
(3) C. pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi4) 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;
5) any encumbrance or restriction with respect to a Restricted Subsidiary (xor any of its property or assets) an agreement effecting a Refinancing of Indebtedness Incurred imposed pursuant to an agreement referred entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
6) customary provisions in Section 4.05(c)(ileases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
7) through (xviencumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority, including pursuant to the terms of any license, concession, authorization, franchise, permit or similar arrangement;
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;
9) any encumbrance or contained in restriction pursuant to Currency Agreements or Interest Rate Agreements;
10) any amendment, modification encumbrance or replacement restriction arising pursuant to an agreement referred or instrument (x) relating to in any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 4.05(c)(i3 (Limitation on Indebtedness) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that other than any refinancing Indebtedness which is subject to sub-paragraph 13) below) if the encumbrances and restrictions contained in any such Refinancing 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 and the Intercreditor Agreement, together with the Security Documents associated therewith as in effect on the Closing Date or (ii) is customary in comparable financings (as determined in good faith by the Company) or where the Company determines when such Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the ability of the Borrowers to make principal or interest payments on the Facilities (as determined in good faith by a responsible financial or chief accounting officer of the Company), or (y) constituting an Additional Intercreditor Agreement;
11) any encumbrance or restriction existing by reason of any lien permitted under Section 6 (Limitation on Liens) and the Intercreditor Agreement or any Additional Intercreditor Agreement;
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; or
13) any agreement, encumbrance or restriction that extends, renews, refinances or replaces any encumbrance or restriction referred to in paragraphs b)1) through b)12) above or this paragraph b)13) or contained in any amendment, supplement or other modification to an agreement referred to in paragraphs b)1) through b)12) above or replacement this paragraph b)13), provided, however, that such encumbrances and restrictions contained in any such agreement, encumbrance or restriction are no less favorable in any material respect to the Holders Lenders taken as a whole than the encumbrances and restrictions contained so extended, refinanced, replaced, amended, supplemented or modified, or will not adversely affect, in such predecessor agreements any material respect, the ability of the Borrowers to make principal or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement interest payments on the date Facilities (as determined in good faith by a responsible financial or chief accounting officer of this Indenturethe Company).
Appears in 1 contract
Sources: Senior Facilities Agreement (Inspired Entertainment, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability right of any Restricted Subsidiary to:
(ai) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries or pay any Indebtedness or other obligations indebtedness owed to the CompanyCompany or its Restricted Subsidiaries;
(bii) make any loans or advances to the CompanyCompany or any of its Restricted Subsidiaries; or
(ciii) transfer any of its property properties or assets to the Company, except, in the case Company or any of clauses (a), its Restricted Subsidiaries.
(b) and (c):The preceding restrictions set forth in Section 4.08(a) above shall not apply to encumbrances or restrictions existing under or by reason of:
(i) any encumbrance or restriction pursuant to applicable lawExisting Indebtedness as in effect on the date of this Indenture;
(ii) any encumbrance or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as in effect or entered into agreements existing on the Closing Datedate of this Indenture, and any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements and or refinancings thereof on terms and conditions with respect to thereof, provided that such encumbrances and restrictions that amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings are not materially no more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness dividend and other payment restrictions than those contained in agreements as in effect on the date of this Indenture, as determined in good faith by the Board of Directors;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to this Indenture and the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in or in contemplation of, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company) and outstanding on such dateNotes;
(iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other dispositionapplicable law;
(v) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction existing is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that, in the case of Indebtedness, such Indebtedness was permitted by reason the terms of this Indenture to be incurred;
(vi) customary non-assignment provisions in leases, licenses and other agreements entered into in the ordinary course of business;
(vii) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in this Section 4.08(a)(iii) on the property so acquired;
(viii) any agreement for the sale of a Restricted Subsidiary (whether by stock sale, asset sale, merger, consolidation or otherwise) that restricts distributions by such Restricted Subsidiary pending its sale;
(ix) Permitted Refinancing Indebtedness, provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole (as determined in good faith by the Board of Directors), than those contained in the agreements governing the Indebtedness being refinanced;
(x) secured Indebtedness otherwise permitted to be incurred pursuant to the provisions under Section 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(xi) customary 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 agreementsagreements entered into in the ordinary course of business;
(vixii) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(viixiii) restrictions relating to Preferred Stock of any encumbrance or restriction existing by reason of Guarantor that require that due and payable dividends thereon be paid in full prior to dividends on such Guarantor's common stock; or
(xiv) restrictions on the transfer assets of assets any Guarantor imposed by any agreement or charter provision evidencing Indebtedness or Capital Stock of such Guarantor that are the subject of a Capitalized Lease Obligation is otherwise permitted under Section 4.03;
(viii) in this Indenture; provided, however, that the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject provisions relating to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 such agreement or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that charter provision are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken Company in any material respect as a whole determined in good faith by the Board of Directors of the Company than the encumbrances and restrictions provisions relating to such encumbrance or restriction contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenture.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyCompany or any Restricted Subsidiary;
(b2) make any loans or advances to the CompanyCompany or any Restricted Subsidiary; or
(c3) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c):Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture, including, without limitation, this Indenture and the Senior Credit Agreement in effect on such date;
(iiiii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such a Restricted Subsidiary prior to on or before the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the CompanyCompany or in contemplation of the transaction) and outstanding on such date;
(iviii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement for effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the sale encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in clauses (i)or (ii) of this paragraph on the Issue Date or other disposition of the date such Restricted Subsidiary became a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other dispositionSubsidiary, whichever is applicable;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viiiiv) in the case of clause (c)3) of the first paragraph of this Section 3.6, any encumbrance or restriction:
(1a) that restricts in 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;
(2b) 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 encumbrance encumbrances or restriction restricts restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements agreements; or
(3c) pursuant to Purchase Money Indebtedness customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(v) purchase money obligations for property acquired in the ordinary course of business that imposes impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.6 on that propertythe property so acquired;
(ixvi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; and
(vii) encumbrances or restrictions that are arising or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility applicable law or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance applicable rule, regulation or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indentureorder.
Appears in 1 contract
Sources: Indenture (General Maritime Corp/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the Company;
Company or a Restricted Subsidiary, (bii) make any loans or advances to the Company; or
Company or any other Restricted Subsidiary or (ciii) transfer any of its property or assets to the CompanyCompany or any other Restricted Subsidiary, except, in the case except for such encumbrances or restrictions existing under or by reason of clauses (a), (b) and (c):
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) Facility as in effect or entered into on the Closing DateNovember 25, 2003, and any amendments, modificationsrestatements, renewals, replacements or refinancings thereof; provided, however, that such amendments, restatements, renewals, extensions, replacements and or refinancings thereof on terms and conditions are no more restrictive with respect to such encumbrances dividend and other payment restrictions that are not materially than those contained in the Credit Facility (or, if more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as contained in effect on the date of this Indenture;
) immediately prior to any such amendment, restatement, renewal, replacement or refinancing, (iiib) applicable law, (c) any encumbrance instrument governing Indebtedness or restriction with respect to a Restricted Subsidiary pursuant to Capital Stock of an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was Acquired Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (other than except to the extent such Indebtedness Incurred as consideration was incurred in connection with or in contemplation ofof such acquisition); provided, however, that (1) such restriction is not applicable to any Person, or the transaction properties or series assets of related transactions pursuant any Person, other than the Acquired Person, and (2) the consolidated net income of an Acquired Person for any period prior to which such Restricted Subsidiary became a Restricted Subsidiary or acquisition shall not be taken into account in determining whether such acquisition was otherwise acquired permitted by the Companyterms of this Indenture, (d) and outstanding on such date;
(iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of customary non-assignment 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash leases or other deposits or net worth imposed by customers under contracts agreements entered into in the ordinary course of business;
business and consistent with past practices, (viie) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes only impose restrictions on that property;
the property so acquired, (ixf) encumbrances an agreement for the sale or restrictions that are or were created by virtue disposition of any transfer of, agreement to transfer, or option or right with respect to any property the Capital Stock or assets of the Company or any such Restricted Subsidiary; provided, however, that such restriction is only applicable to such Restricted Subsidiary or assets, as applicable, and such sale or disposition otherwise is permitted under Section 4.17 below; provided, further, however, that such restriction or encumbrance shall be effective only for a period from the execution and delivery of such agreement through a termination date not otherwise prohibited by later than 270 days after such execution and delivery, or (g) Refinancing Indebtedness permitted under this Indenture;
(x) encumbrances and ; provided, however, that the restrictions contained in the agreements governing such Refinancing Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by are no more restrictive in the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, aggregate than those contained in this Indenture the agreements governing the Notes Indebtedness being refinanced immediately prior to such refinancing. Notwithstanding the foregoing, neither (a) customary provisions restricting subletting or assignment of any lease entered into in the Credit Agreement ordinary course of business, consistent with past practice, nor (b) Liens permitted under this Indenture, shall in and of themselves be considered a restriction on the date ability of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any applicable Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or assets, as the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenturemay be.
Appears in 1 contract
Sources: Indenture (Amida Industries Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the CompanyCompany (provided that dividend or liquidation priority between classes of Capital Stock, exceptor subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, in the case of clauses (awill not be deemed to constitute such an encumbrance or restriction), (b) and (c):
(i) except any encumbrance or restriction restriction:
(1) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Issue Date, and any amendmentsCredit Facility, modificationsthis Indenture, restatementsthe Notes, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Existing Notes or any Existing Notes Indenture;
(iii2) pursuant to any encumbrance agreement or restriction instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect to thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Holders of the Company (other Notes than Indebtedness Incurred as consideration encumbrances and restrictions contained in the Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such date);
(iv4) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to , or the extent such encumbrance assignment or restriction restricts the transfer of the property subject to such security agreements or
any lease, license or other contract, (3B) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness of Foreign Subsidiaries permitted a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(xv5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xviassets) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred imposed pursuant to an agreement referred 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 in Section 4.05(c)(isuch restriction) through pending the closing of such sale or disposition;
(xvi6) by reason of any applicable law, rule, regulation or contained in order, or required by any amendment, modification regulatory authority having jurisdiction over the Company or replacement any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement referred or instrument (A) relating to in any Indebtedness permitted to be Incurred subsequent to November 27, 2006 pursuant to the provisions of Section 4.05(c)(i407 (i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such predecessor agreements encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any Credit Facility which is no less favorable sale of receivables by a Foreign Subsidiary or (C) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained Financing Disposition by or to or in the Credit Agreement on the date favor of this Indentureany Special Purpose Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company;
, (b) make any loans or advances to the Company; or
Company or (c) transfer any of its property or assets to the Company, except, in the case of :
(1) with respect to clauses (a), (b) and (c):),
(iA) (1) any encumbrance or restriction imposed pursuant to applicable law;
or required by an agreement in effect at or entered into on the Issue Date (iiincluding pursuant to the ABL Credit Facility) and (2) any encumbrance or restriction in any agreement with respect to Indebtedness (including existing under, or otherwise required by or imposed pursuant to, the Credit Agreement) as in effect or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this IndentureSecurity Documents;
(iiiB) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary Person on or prior to the date on which such Person became a Restricted Subsidiary or was acquired by by, or merged into, the Company (other than Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was otherwise acquired by by, or merged into, the Company) and outstanding on such date, which encumbrance or restriction is not applicable to any Person, or the property or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired;
(ivC) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(D) any encumbrance or restriction with respect to contractual requirements of a Receivables Subsidiary in connection with a Qualified Receivables Transaction; provided that any such encumbrances or restrictions apply only to such Receivables Subsidiary;
(E) restrictions on cash or other deposits imposed by customers, suppliers or landlords under contracts entered into in the ordinary course of business;
(F) any encumbrance or restriction pursuant to an agreement for any Purchase Money Indebtedness permitted to be Incurred under Section 4.03(b)(11); provided, however, that any such encumbrances or restrictions apply only to the sale or other disposition assets the purchase of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other dispositionwhich is being financed with such Purchase Money Indebtedness;
(vG) any encumbrance or restriction existing by reason of provisions with respect to limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements;
agreements (viincluding agreements entered into in connection with Investments other than Permitted Investments) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on , which limitation is applicable only to the transfer of assets that are the subject of such agreements;
(H) any encumbrance or restriction contained in any Indebtedness Incurred by a Capitalized Lease Obligation Foreign Subsidiary in accordance with this Indenture to the extent such encumbrance or restriction applies only to the assets of such Foreign Subsidiary or any other Foreign Subsidiary;
(I) any encumbrance or restriction arising or existing by reason of applicable law, rule, regulation or order;
(J) any encumbrance or restriction arising from customary provisions in Hedging Obligations permitted under Section 4.034.03(b)(7);
(viiiK) negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under this Indenture; and
(L) encumbrances and restrictions contained in indentures or debt instruments or other debt arrangements Incurred or Preferred Stock issued by Subsidiary Guarantors in accordance with Section 4.03 that are not more restrictive, taken as a whole and in the case good faith judgment of clause the Board of Directors, than those applicable to the Company in this Indenture and the ABL Credit Facility on the Issue Date (cwhich results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,; and
(2) with respect to clause (c) only,
(A) any encumbrance or restriction consisting of customary nonassignment provisions in leases or other agreements to the extent such provisions restrict the transfer of the property or assets subject to such agreements; and
(B) any encumbrance or restriction contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements oror mortgages; and
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments or refinancings of the contracts, instruments or obligations referred to in paragraphs (1) and (2) above; provided, however, that are such amendments or were created by virtue refinancings are, in the good faith judgment of any transfer ofthe Board of Directors, agreement to transfer, or option or right no more restrictive with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances such dividend and other restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions those contained in such predecessor agreements contracts, instruments or (y) any Credit Facility which is no less favorable obligations prior to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenturesuch amendment or refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company 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 (a) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
an Obligor; (b) make any loans or advances to the Companyan Obligor; or
or (c) sell, lease or transfer any of its property or assets to an Obligor; provided that (x) the Company, except, priority of any Preferred Stock in the case of clauses (a), (b) receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (c):y) the subordination of (including the application of any standstill requirements to) loans or advances made to an Obligor to other Indebtedness Incurred by an Obligor shall not be deemed to constitute such an encumbrance or restriction. Notwithstanding anything contained herein, the following shall not be prohibited by this Section 7.09:
(i1) any encumbrance or restriction pursuant to applicable law(a) any 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 Signing Date;
(ii2) any encumbrance or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as in effect or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness Incurred by such Restricted Subsidiary prior to of a Person, entered into on or before the date on which such Restricted Subsidiary Person was acquired by the Company or merged, consolidated or otherwise combined with or into an Obligor, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by an Obligor in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was otherwise acquired by the Companyan Obligor or was merged, consolidated or otherwise combined with or into 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, if another Person is the Successor Borrower, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by an Obligor when such Person becomes the Successor Borrower;
(iv3) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
, or the assignment or transfer of any lease, license or other contract; (2b) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement or securing Indebtedness of a Restricted Subsidiary an Obligor permitted under this Agreement to the extent such encumbrance encumbrances or restriction restricts restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements or
agreements; or (3c) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiaryan Obligor;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi4) 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;
(x5) an agreement effecting any encumbrance or restriction with respect to a Refinancing Restricted Subsidiary (or any of Indebtedness Incurred its property or assets) imposed pursuant to an agreement referred entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) customary provisions in Section 4.05(c)(ileases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(7) through encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(xvi8) 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;
(9) any encumbrance or contained restriction pursuant to Hedging Obligations;
(10) restrictions created in connection with any amendmentQualified Securitization Financing that, modification in the good faith determination of the Borrower, are necessary or replacement advisable to effect such Securitization Facility and that apply to such Securitization Subsidiary;
(11) any encumbrance or restriction arising pursuant to an agreement referred or instrument relating to in any Indebtedness permitted to be Incurred subsequent to the Signing Date pursuant to Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that 7.03 if the encumbrances and restrictions contained in any such Refinancing agreement or instrument taken as a whole are not materially less favorable to the Lender 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 Borrower) and where, in the case of clause (b), either (i) the Borrower determines at the time of issuance of such 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 Indebtedness, including the Senior Notes, or (ii) such encumbrance or restriction applies only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Indebtedness;
(12) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01; or
(13) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) or (2) of this paragraph or this clause (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) or replacement (2) of this paragraph or this clause (13); 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 Lender taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such predecessor agreements refinancing or amendment, supplement or other modification relates (y) any Credit Facility which is no less favorable to as determined in good faith by the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this IndentureBorrower).
Appears in 1 contract
Sources: Credit Agreement (Igate Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and Holdings shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company;
Company or any Restricted Subsidiary, (b) make any loans or advances to the Company; or
Company or any Restricted Subsidiary or (c) transfer any of its property or assets to the CompanyCompany or any Restricted Subsidiary, except, in the case of :
(1) with respect to clauses (a), (b) and (c):),
(iA) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on or prior to the Closing Issue Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on including the date of this IndentureSenior Credit Agreement;
(iiiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Company Holdings (other than Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the CompanyHoldings) and outstanding on such date;
(ivC) any encumbrance or restriction pursuant to an agreement for effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(1)(A) or (B) or this clause (C) or contained in any amendment to an agreement referred to in Section 4.05(1)(A) or (B) or this clause (C); provided, however, that the sale or other disposition of a encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or assets that restrict distributions amendment are not materially less favorable, taken as a whole, to the Company (as determined by that the Company in its reasonable and good faith judgment) than encumbrances and restrictions with respect to such Restricted Subsidiary or distributions of those assets pending the sale or other dispositioncontained in such predecessor agreements;
(vD) any encumbrance or restriction existing by reason of provisions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or distribution substantially all the Capital Stock or assets of assets such Restricted Subsidiary pending the closing of such sale or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreementsdisposition;
(viE) any encumbrance or restriction existing by reason pursuant to an agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction relates only to the property or assets so acquired and is not created in anticipation of such acquisition;
(F) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(G) restrictions on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed by customers under contracts entered into the ordinary course of business, including such restrictions imposed by customers, suppliers, landlords or insurance, surety or bonding companies;
(H) any encumbrance or restriction with respect to a Foreign Subsidiary entered into in the ordinary course of business or pursuant to the terms of Indebtedness that was Incurred by such Foreign Subsidiary in compliance with the terms of this Indenture;
(I) provisions contained in any license, permit or other accreditation with a regulatory authority entered into the ordinary course of business;
(viiJ) provisions in agreements or instruments which prohibits the payment or making of dividends or other distributions other than on a pro rata basis;
(K) customary provisions in organizational documents, joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into (i) in the ordinary course of business or (ii) with the approval of the Board of Directors; and
(L) any encumbrance or restrictions existing under or by reason of any agreements governing other Indebtedness permitted to be incurred under Section 4.03 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein are not materially more restrictive, taken as a whole, than those permitted in (y) this Indenture, the Securities and the Guarantees or (z) agreements governing Indebtedness outstanding on the Issue Date, in each case as determined by the Company in its reasonable and good faith judgment.
(2) with respect to clause (c) only,
(A) any encumbrance or restriction existing by reason consisting of restrictions on customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;lease or the property leased thereunder; and
(viiiB) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) restriction contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenturemortgages.
Appears in 1 contract
Sources: Indenture (Murphy USA Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the Company, except, in the case of clauses except (a), (b) and (c):
(iA) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
Indenture (iiiincluding, without limitation, the Senior Credit Facility); (B) any encumbrance or restriction with respect to a Restricted Subsidiary (1) pursuant to an agreement relating to any Indebtedness Incurred incurred by such a Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company, or of another Person that is assumed by the Company or a Restricted Subsidiary in connection with the acquisition of assets from, or merger or consolidation with, such Person (other than Indebtedness Incurred incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company, or such acquisition of assets, merger or consolidation) and outstanding on the date of such date;
acquisition, merger or consolidation or (iv2) pursuant to any agreement (not relating to any Indebtedness) in existence when a Person becomes a Subsidiary of the Company or when such agreement is acquired by the Company or any Subsidiary thereof, that is not created in contemplation of such Person becoming such a Subsidiary or such acquisition (for purposes of this clause (B), if another Person is the Successor Company, any Subsidiary or agreement thereof shall be deemed acquired or assumed, as the case may be, by the Company when such Person becomes the Successor Company); (C) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement for (a "Refinancing Agreement") effecting a refinancing of Indebtedness incurred pursuant to, or that otherwise extends, renews, refinances or replaces, an agreement referred to in clause (A) or (B) of this covenant or this clause (C) or contained in any amendment to an agreement referred to in clause (A) or (B) of this covenant or this clause (C) (an "Initial Agreement") or contained in any amendment to an Initial Agreement; provided, however, that the sale encumbrances and restrictions contained in any such Refinancing Agreement or other disposition amendment are no less favorable to the Holders of the Securities taken as a Restricted Subsidiary whole than encumbrances and restrictions contained in the Initial Agreement or assets that restrict distributions by that Restricted Subsidiary Agreements to which such Refinancing Agreement or distributions of those assets pending the sale or other disposition;
amendment relates; (vD) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
, or the assignment or transfer of any lease, license or other contract, (2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (x3) encumbrances and restrictions contained in mortgages, pledges or other agreements securing Indebtedness of Foreign Subsidiaries permitted a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements or (4) pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary;
; (xvE) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; and (F) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date transfer of this Indentureproperty or assets required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses.
Appears in 1 contract
Sources: Indenture (Rent a Center Inc De)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyCompany or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(b2) make any loans or advances to the CompanyCompany or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(c3) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c):Company or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture, including, without limitation, this Indenture, the Initial Securities, the Exchange Securities, the Subsidiary Guarantees and the Senior Secured Credit Agreement (and related documentation) in effect on such date;
(iiiii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by such a Restricted Subsidiary prior to on or before the date on which such Restricted Subsidiary was acquired by the Company (other than Capital Stock or Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the CompanyCompany or in contemplation of the transaction) and outstanding on such date, 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;
(iviii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement for effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the sale encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect, taken as a whole, to the Holders of the Securities, in the reasonable judgment of the Company’s Board of Directors or other disposition senior management, than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or assets that restrict distributions by that was merged into a Restricted Subsidiary or distributions of those assets pending the sale or other dispositionSubsidiary, whichever is applicable;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viiiiv) in the case of clause (c)3) of the first paragraph of this Section 3.6, any encumbrance or restriction:
(1a) that restricts in 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;
(2b) 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 encumbrance encumbrances or restriction restricts restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements agreements; or
(3c) pursuant to Purchase Money Indebtedness customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that imposes impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.6 on the property so acquired;
(vi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that propertyare subject to such restriction) pending the closing of such sale or disposition;
(vii) any customary encumbrances or restrictions imposed pursuant to any agreement referred to in the definition of “Permitted Business Investment” or in Employee Partnerships;
(viii) net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(ix) encumbrances or restrictions that are arising or were created existing by virtue reason of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company applicable law or any Restricted Subsidiary not otherwise prohibited by this Indenture;applicable rule, regulation or order; and
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or debt instruments or other debt instruments, facilities or arrangements Incurred by Subsidiary Guarantors in accordance with Section 3.3 that are not materially more restrictive, taken as a whole, than those contained applicable to the Company in either this Indenture governing the Notes or the Senior Secured Credit Agreement on the date of this Indenture;
Issue Date (xii) which results in encumbrances and or restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect comparable to any assets or other property acquired by those applicable to the Company or any at a Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Personlevel);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenture.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective effective, or enter into any agreement with any Person that would cause to become effective, any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness or other obligations owed obligation owed, to the Company;
Company or any other Restricted Subsidiary, (b) make any loans or advances to the Company; or
Company or any other Restricted Subsidiary or (c) transfer any of its property or assets Property to the Company, except, in the case of Company or any other Restricted Subsidiary. Such limitation will not apply (1) with respect to clauses (a), (b) and (c):
), to encumbrances and restrictions (i) in existence under or by reason of any encumbrance or restriction pursuant to applicable law;
agreements (iinot otherwise described in clause (iii)) any encumbrance or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as in effect or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date Issue Date, (ii) relating to Indebtedness of this Indenture;
(iii) any a Restricted Subsidiary and existing at such Restricted Subsidiary at the time it became a Restricted Subsidiary if such encumbrance or restriction was not created in connection with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in or in contemplation of, anticipation of the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company) and outstanding on such date;
, (iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xviiii) any encumbrance or restriction pursuant to (x) an the Credit Facility as in effect on the Issue Date and (y) any agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) which amends, extends, renews, refinances, replaces or contained in any amendmentrefunds the Credit Facility, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that in the case of this subclause (y), such restrictions or encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken holders of the Notes than those restrictions or encumbrances pursuant to the Credit Facility as in effect on the Issue Date; PROVIDED, FURTHER, HOWEVER, that in the case of subclauses (x) and (y), the provisions of the Credit Facility (A) permit (whether explicitly or as a whole result of the relative maturities of the Credit Facility and the Notes) distributions to the Company for the purpose of, and in an amount sufficient to fund, the payment of principal due at Stated Maturity and interest in respect of the Notes (PROVIDED, in either case, that such payment is due or to become due within 30 days from the date of such distribution) at a time when there does not exist an event which after notice or passage of time or both would permit the lenders under the Credit Facility to declare all amounts thereunder due and payable, and (B) provide that in no event shall any encumbrance or restriction pursuant to the Credit Facility prohibit distributions for Indebtedness on the Notes for more than 180 days in any consecutive 360 day period, unless (1) there exists a default under the encumbrances and restrictions contained in such predecessor agreements Credit Facility resulting from any payment default under the Credit Facility when due or (y2) any the maturity of the Credit Facility has been accelerated, or (iv) which result from the extension renewal, refinancing, replacement, refunding or amendment of an agreement referred to in the immediately preceding clauses (1)(i) and (ii) above and in clauses (2)(i) and (ii) below, PROVIDED, such encumbrance or restriction is no more restrictive to such Restricted Subsidiary and is not materially less favorable to the Holders taken holders of Notes than those under or pursuant to the agreement evidencing the Indebtedness so extended, renewed, refinanced, replaced, refunded or amended, and (2) with respect to clause (c) only, to (i) any encumbrance or restriction relating to Indebtedness that is permitted to be Incurred and secured pursuant to Sections 4.11 and 4.16 that limits the right of the debtor to dispose of the assets or Property securing such Indebtedness, (ii) any encumbrance or restriction in connection with an acquisition of Property, so long as a whole than such encumbrance or restriction relates solely to the encumbrances Property so acquired and was not created in connection with or in anticipation of such acquisition, (iii) customary provisions restricting subletting or assignment of leases of the Company or any Restricted Subsidiary and customary provisions in other agreements that restrict assignment of such agreements or rights thereunder or (iv) customary restrictions contained in asset sale agreements limiting the Credit Agreement on transfer of such assets pending the date closing of this Indenturesuch sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective effective, any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on or in respect of its Capital Stock to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company;
Company or any Restricted Subsidiary, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the CompanyCompany or any Restricted Subsidiary, except, in the case of clauses except for:
(a), (b) and (c):
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Issue Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
(iiib) 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 became a Subsidiary of, or was acquired by by, the Company (other than Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of, or was otherwise acquired by by, the Company) and outstanding on such date;
(ivc) any encumbrance or restriction pursuant to an agreement for relating to an acquisition of property, so long as the sale encumbrances or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending restrictions in such agreement relate solely to the sale or other dispositionproperty so acquired;
(vd) any encumbrance or restriction existing by reason pursuant to an agreement effecting a refinancing of provisions with respect Indebtedness Incurred pursuant to an agreement referred to in clause (a), (b) or (c) or contained in any amendment to any such agreement; provided, however, that any encumbrance and any restriction contained in any such refinancing agreement or amendment is no less favorable to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements;
(vi) Securityholders than any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into contained in the ordinary course of business;such agreement; and
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viiie) in the case of clause (ciii), any encumbrance or restriction
restriction (1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contract,
property or asset, (2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created arising by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
Indenture or (x3) encumbrances arising or agreed to in the ordinary course of business and restrictions contained that does not, individually or in Indebtedness the aggregate, detract from the value of Foreign Subsidiaries permitted pursuant to Section 4.03 property or industrial revenue or similar bonds Incurred by assets of the Company or any Restricted Subsidiary and permitted pursuant in any manner material to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenture.
Appears in 1 contract
Sources: Indenture (Anacomp Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall Guarantor will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock or any other interest in or participation in or measured by its profits, or pay any Indebtedness Debt or other obligations owed obligation owed, to the CompanyGuarantor or a Restricted Subsidiary;
(b) make any loans or advances to the CompanyGuarantor or a Restricted Subsidiary; or
(c) transfer any of its property or assets to the Company, except, in the case of clauses Guarantor or a Restricted Subsidiary. The foregoing limitation shall not apply:
(a), (bA) to encumbrances and (c):restrictions:
(i) in existence under or by reason of any encumbrance or restriction pursuant to applicable lawagreements (not otherwise described in clause (A) (iii) below) in effect on the Issue Date;
(ii) any relating to Debt of a Restricted Subsidiary and existing at such Restricted Subsidiary at the time it became a Restricted Subsidiary if such encumbrance or restriction was not created in any agreement connection with respect to Indebtedness (including the Credit Agreement) as in effect or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in or in contemplation of, anticipation of the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the CompanyGuarantor;
(iii) and outstanding on such dateset forth in the Bank Credit Facility;
(iv) applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Senior Debt, provided that the provisions of such agreement do not prevent (other than following an event of default on such Senior Debt) the payment of interest and mandatory payment or mandatory prepayment of principal pursuant to the terms of this Indenture and the Notes, but provided further that such agreement may nevertheless contain customary net worth, leverage, invested capital and other financial covenants, customary covenants regarding the merger of or sale of all or any substantial part of the assets of the Guarantor or any Restricted Subsidiary, customary restrictions on transactions with Affiliates, and customary subordination provisions governing Debt owed to the Guarantor or any Restricted Subsidiary; or
(v) which result from the renewal, refinancing, extension or amendment of an agreement referred to in clauses (A)(i), (ii) or (iii) above or in clauses (B)(i) or (ii) below, provided, such encumbrance or restriction is no less favorable in any material respect, taken as a whole, to the Holders of Notes than those under the agreement evidencing the Debt so renewed, refinanced, extended or amended, as determined in good faith by the Management Board and evidenced by a Board Resolution; and
(B) with respect only to clause (c) of this Section 4.11, to:
(i) any encumbrance or restriction relating to Debt that is permitted to be Incurred pursuant to the provisions described in Section 4.09 or Section 4.16 and secured pursuant to the provisions of Section 4.15; 39
(ii) any encumbrance or restriction in connection with an agreement for acquisition of Property, so long as such encumbrance or restriction relates solely to the sale Property so acquired and was not created in connection with or in anticipation of such acquisition;
(iii) customary provisions of leases and customary provisions in other disposition of a Restricted Subsidiary or assets agreements that restrict distributions by that Restricted Subsidiary assignment of such agreements or distributions rights thereunder;
(iv) customary restrictions contained in asset sale agreements limiting the transfer of those assets such Property pending the sale or other dispositionclosing of such sale;
(v) any encumbrance or restriction existing by reason of provisions with respect to a customary merger or acquisition agreement for the disposition purchase or distribution acquisition of the stock or assets of the Guarantor or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreementsany of its Subsidiaries by another Person;
(vi) any encumbrance customary restrictions contained in operating leases for real property and restricting only the transfer of such real property or restriction existing by reason effective only upon the occurrence and during the continuance of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into a default in the ordinary course payment of businessrent;
(vii) any encumbrance or restriction existing by reason arising as the result of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;applicable law or regulation; or
(viii) in the case of clause (c)any restriction or encumbrance that may be imposed by governmental licenses, any encumbrance franchises or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenturepermits.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The From and after the Effective Date, the Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the CompanyCompany (provided that dividend or liquidation priority between classes of Capital Stock, exceptor subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, in the case of clauses (awill not be deemed to constitute such an encumbrance or restriction), (b) and (c):
(i) except any encumbrance or restriction restriction:
(1) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Effective Date or the Separation Date, and any amendmentsCredit Facility, modificationsthis Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, restatementsor relating to Indebtedness or Capital Stock of a Person, renewalswhich Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, extensionsor which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, replacements and refinancings thereof on terms and conditions or any other transaction entered into in connection with respect to any such encumbrances and restrictions that are not materially more restrictiveacquisition, taken as a wholemerger or consolidation, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that for purposes of this Indentureclause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary 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 agreement or 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 any Indebtedness Incurred by Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Holders of the Company (other Notes than Indebtedness Incurred as consideration the encumbrances and restrictions contained in the Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such date, which determination shall be conclusive);
(iv4) any encumbrance or restriction pursuant to an any agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) 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 to a leasethereto, license or similar contract,
(2B) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness or other obligations of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any a Restricted Subsidiary and permitted to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to Section 4.03;
customary provisions (xi) encumbrances or restrictions contained as determined in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired good faith by the Company or any Restricted Subsidiary (including pursuant to the acquisition Company, which determination shall be conclusive) restricting dispositions of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits, 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 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 (J) pursuant to Bank Products Obligations;
(xv5) with respect to any encumbrance agreement for the direct or restriction existing under indirect disposition of Capital Stock or property or assets of any Person, imposed with respect to such Person, Capital Stock, property or assets pending the closing of such disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Subsidiary’s status (or the status of any Subsidiary of such Subsidiary) as a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03Captive Insurance Subsidiary; PROVIDED that such restrictions apply only to such Receivables Facility; andor
(xvi7) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred or instrument (A) relating to in any Indebtedness permitted to be Incurred subsequent to the Effective Date pursuant to Section 4.05(c)(i407 (i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company, which determination shall be conclusive), or (ii) if such predecessor agreements encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company, which determination shall be conclusive) and either (x) 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 or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any Credit Facility which is no less favorable sale of receivables by or Indebtedness of a Foreign Subsidiary, (C) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained Franchise Financing Disposition by or to or in the Credit Agreement on the date favor of this Indentureany Franchisee or Franchise Special Purpose Entity or to any Franchise Lease Obligation or (D) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock Stock, or pay any Indebtedness or other obligations owed owed, to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c)::
(i1) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Issue Date, including without limitation, each of the Credit Agreements and any amendments, modifications, restatements, renewals, extensions, replacements related collateral documents and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indentureguarantees;
(iii2) any encumbrance or restriction with respect to a Restricted Subsidiary (x) pursuant to an agreement relating to any Indebtedness (A) Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company or (B) of a Person assumed by the Company or a Restricted Subsidiary in connection with the acquisition of assets from such Person provided that at the time such assets were owned by such other Person such Indebtedness was either secured by such assets or related to the acquisition, ownership, improvement or use of such assets (in each case other than Indebtedness Incurred as consideration in or in, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise such assets were acquired by the CompanyCompany or a Restricted Subsidiary, as applicable) or (y) that is not pursuant to an agreement relating to Indebtedness, and outstanding on is in existence at the time that such datePerson becomes a Subsidiary of the Company and not incurred in connection with, or in contemplation of, such Person becoming such a Subsidiary;
(iv3) any encumbrance or restriction pursuant to an agreement for (a "Refinancing Agreement") that extends, renews, refinances or replaces an agreement referred to in clause (1) or (2) of this Section or this clause (3) (an "Initial Agreement") or contained in any amendment to an Initial Agreement; provided, however, that the sale encumbrances and restrictions contained in any such Refinancing Agreement or other disposition of a Restricted Subsidiary amendment are not materially less favorable to the Securityholders than encumbrances and restrictions contained in the Initial Agreement or assets that restrict distributions Initial Agreements to which such Refinancing Agreement or amendment relates (as determined in good faith by that Restricted Subsidiary or distributions of those assets pending the sale or other dispositionCompany);
(v4) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner (x) the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
, or (2y) the assignment or transfer of any lease, license or other contract, or (B) contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property or asset subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that propertyor mortgages;
(ix5) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right restriction with respect to a Restricted Subsidiary, or any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this IndentureSubsidiary, imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary, or the sale or disposition of the property or assets that are subject to such restriction, pending the closing of such sale or disposition;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii6) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi7) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing relating to any foreign Indebtedness incurred by any non-U.S. Restricted Subsidiary;
(8) any encumbrance or restriction required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of Indebtedness Incurred their businesses;
(9) any encumbrance or restriction pursuant to an agreement referred relating to in Section 4.05(c)(iIndebtedness of or a Financing Disposition to or by any Receivables Subsidiary or Equipment Subsidiary; and
(10) through (xvi) any encumbrance or contained in any amendment, modification restriction pursuant to a joint venture or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing similar agreement or amendment, modification or replacement are no less favorable to the Holders taken as arrangement entered into in connection with a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this IndentureFiskeby Transaction.
Appears in 1 contract
Sources: Indenture (Ric Holding Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall Borrower will not, and shall will not permit any Material Restricted Subsidiary to, to create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
Borrower, (bii) make any loans or advances to the Company; or
Borrower or (ciii) transfer any of its property or assets to the CompanyBorrower (provided that dividend or liquidation priority between classes of Capital Stock, exceptor subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, in the case of clauses (awill not be deemed to constitute such an encumbrance or restriction), (b) and (c):
(i) except any encumbrance or restriction restriction:
(a) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Date, any Credit Facility (including without limitation, the Revolving Facility), the Senior Interim Loan Facility, the Existing Notes Indenture and the Existing Notes;
(b) pursuant to any amendmentsagreement or instrument of a Person, modificationsor relating to Indebtedness or Capital Stock of a Person, restatementswhich Person is acquired by or merged or consolidated with or into the Borrower or any Restricted Subsidiary, renewalsor which agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this Indenturesubsection 7.9(b), if a Person other than the Borrower is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(iiic) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in subsections 7.9(a) or (b) above or this subsection 7.9(c) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Lenders than encumbrances and restrictions contained in the Company (other than Indebtedness Incurred as consideration in Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such dateBorrower);
(iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
, or the assignment or transfer of any lease, license or other contract, (2ii) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (iii) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts restricting the transfer of the property or assets subject thereto, (iv) pursuant to such security customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements or
of the Borrower or any Restricted Subsidiary, (3v) pursuant to Purchase Money Indebtedness for Obligations that impose encumbrances or restrictions on the property acquired or assets so acquired, (vi) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (vii) 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, (viii) that imposes restrictions on that property;
(ix) encumbrances arises or restrictions that are or were created by virtue is agreed to in the ordinary course of any transfer of, agreement to transfer, or option or right with respect to any business and does not detract from the value of property or assets of the Company Borrower or any Restricted Subsidiary not otherwise prohibited by this Indenturein any manner material to the Borrower or such Restricted Subsidiary, or (ix) pursuant to Hedging Obligations;
(xe) encumbrances and restrictions contained in Indebtedness with respect to a Restricted Subsidiary (or any of Foreign Subsidiaries permitted its property or assets) imposed pursuant to Section 4.03 an agreement entered into for the direct or industrial revenue indirect sale or similar bonds Incurred 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;
(f) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company Borrower or any Restricted Subsidiary and permitted pursuant to Section 4.03;or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary or Home Warranty Subsidiary; or
(xig) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred or instrument (i) relating to in Section 4.05(c)(iany Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to subsection 7.1, (A) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole Lenders than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Borrower), or (B) if such predecessor agreements 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 either (x) the Borrower determines in good faith that such encumbrance or restriction will not materially affect the Borrower’s ability to make principal or interest payments on the Term Loans and Reimbursement Obligations owing under the LC Facility or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (ii) relating to any Credit Facility which is no less favorable sale of receivables by or Indebtedness of a Foreign Subsidiary or (iii) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained Financing Disposition by or to or in the Credit Agreement on the date favor of this Indentureany Special Purpose Entity.
Appears in 1 contract
Sources: Credit Agreement (Servicemaster Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the CompanyCompany (provided that dividend or liquidation priority between classes of Capital Stock, exceptor subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, in the case of clauses (awill not be deemed to constitute such an encumbrance or restriction), (b) and (c):
(i) except any encumbrance or restriction restriction:
(1) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Issue Date, and any amendmentsCredit Facility, modificationsthis Indenture, restatementsthe Senior Subordinated Indenture, renewalsthe Notes or the Senior Subordinated Notes;
(2) pursuant to any agreement or instrument of a Person, extensionsor relating to Indebtedness or Capital Stock of a Person, replacements and refinancings thereof on terms and conditions which Person is acquired by or merged or consolidated with respect to or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such encumbrances and restrictions that are not materially more restrictivePerson, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this Indentureclause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Holders of the Company (other Notes than Indebtedness Incurred as consideration encumbrances and restrictions contained in the Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such date);
(iv4) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to , or the extent such encumbrance assignment or restriction restricts the transfer of the property subject to such security agreements or
any lease, license or other contract, (3B) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness of Foreign Subsidiaries permitted a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(xv5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xviassets) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred imposed pursuant to an agreement referred entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in Section 4.05(c)(iconnection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) through as a Captive Insurance Subsidiary; or
(xvi7) or contained in any amendment, modification or replacement pursuant to an agreement referred or instrument (A) relating to in any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.05(c)(i407 (i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such predecessor agreements encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any Credit Facility which is no less favorable sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained Financing Disposition by or to or in the Credit Agreement on the date favor of this Indentureany Special Purpose Entity.
Appears in 1 contract
Sources: Indenture (Great North Imports, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
Company or, in the case of a Restricted Subsidiary that is not a Subsidiary Guarantor, to a Subsidiary Guarantor, (bii) make any loans or advances to the Company; Company or
, in the case of a Restricted Subsidiary that is not a Subsidiary Guarantor, to a Subsidiary Guarantor or (ciii) transfer any of its property or assets to the Company, exceptCompany or, in the case of clauses a Restricted Subsidiary that is not a Subsidiary Guarantor, to a Subsidiary Guarantor (aprovided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), (b) and (c):
(i) except any encumbrance or restriction restriction:
(1) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Issue Date, and any amendmentsCredit Facility, modificationsthis Indenture, restatementsthe Note Security Documents, renewalsthe Intercreditor Agreements, extensionsthe Notes, replacements and refinancings thereof on terms and conditions the Senior Second Priority Note Documents, the Senior Second Priority Notes, the Senior Unsecured Indenture, the Senior Unsecured Notes, the Senior Subordinated Indenture or the Senior Subordinated Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with respect to or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such encumbrances and restrictions that are not materially more restrictivePerson, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on at the date time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this Indentureclause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Holders of the Company (other Notes than Indebtedness Incurred as consideration encumbrances and restrictions contained in the Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such date);
(iv4) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to , or the extent such encumbrance assignment or restriction restricts the transfer of the property subject to such security agreements or
any lease, license or other contract, (3B) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness of Foreign Subsidiaries permitted a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, (I) pursuant to Hedging Obligations entered into for bona fide hedging purposes or (J) pursuant to Bank Products Obligations;
(xv5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred assets), imposed pursuant to an agreement referred 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 in Section 4.05(c)(isuch restriction) through pending the closing of such sale or disposition;
(xvi6) by reason of any applicable law, rule, regulation or contained in order, or required by any amendment, modification regulatory authority having jurisdiction over the Company or replacement any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement referred or instrument (A) relating to in any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 4.05(c)(i407 (i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such predecessor agreements encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any Credit Facility which is no less favorable sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained Financing Disposition by or to or in the Credit Agreement on the date favor of this Indentureany Special Purpose Entity.
Appears in 1 contract
Sources: Indenture (Hd Supply, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(aA) to pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries or pay any Indebtedness or other obligations owed to the Company;
Issuer or a Restricted Subsidiary, (bB) to make any loans or advances to the Company; or
Issuer or a Restricted Subsidiary or (cC) to transfer any of its property or assets to the CompanyIssuer or a Restricted Subsidiary, except, in the case of clauses (a), (b) and (c)::
(i) any encumbrance or restriction pursuant to applicable law;
(ii1) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect or entered into on the Closing DateIssue Date (including, and any amendmentswithout limitation, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect pursuant to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness or required by the ABL Credit Agreement or related documents as in effect on the date of this IndentureIssue Date);
(iii2) any encumbrance or restriction with respect to a Restricted Subsidiary or pursuant to an agreement instrument relating to any Indebtedness Incurred by such Restricted Subsidiary or Capital Stock of a Person in effect on or prior to the date on which such Restricted Subsidiary Person was acquired by the Company Issuer or became a Restricted Subsidiary of the Issuer (other than Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was otherwise acquired by the Company) and outstanding on such dateIssuer);
(iv3) any such encumbrance or restriction consisting of customary nonassignment provisions in leases, subleases or licenses to the extent such provisions restrict the transfer of the lease or the property or assets subject to such agreements;
(4) in the case of clause (C) above, any encumbrances or restrictions related to purchase money obligations or other Obligations described in Section 4.08(b)(6) hereof for property so acquired that in each case impose restrictions of the nature described in clause (C) above on the property so acquired;
(5) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or other disposition of a all or substantially all the Capital Stock or assets of such Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the closing of such sale or other disposition;
(v6) any encumbrance or restriction existing under or by reason of provisions with respect to the disposition applicable law, rule, regulation or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreementsorder;
(vi7) any encumbrance or restriction existing under or by reason of any other agreements governing Indebtedness permitted to be Incurred pursuant to Section 4.08 hereof that contains encumbrances and restrictions that are not materially more restrictive with respect to any Restricted Subsidiary than those in effect on the Issue Date under the ABL Credit Agreement (as determined in good faith by the Board of Directors of the Issuer);
(8) Liens permitted to be Incurred under Section 4.13 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(9) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii10) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted a Foreign Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds the terms of Indebtedness that was Incurred by such Foreign Subsidiary in compliance with the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date terms of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv11) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facilityin this Indenture, the Notes, the Subsidiary Guarantees and the Collateral Agreements; and
(xvi12) any encumbrance encumbrances or restriction pursuant to restrictions imposed by any amendments, restatements, modifications, renewals or refinancings (xregardless of whether the principal amount of underlying Indebtedness is increased or decreased) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement the contracts, instruments or obligations referred to in Section 4.05(c)(iclauses (1) through (xvi11) above; provided that such amendments or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi)refinancings are, in each case as applicable; PROVIDEDthe good faith judgment of the Issuer’s Board of Directors, HOWEVER, that the no more materially restrictive with respect to such encumbrances and restrictions contained in any than those prior to such Refinancing agreement amendment or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenturerefinancing.
Appears in 1 contract
Sources: Indenture (Horsehead Holding Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c)::
(i1) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenturethe Indenture (including, without limitation, the Senior Credit Facility);
(iii2) any encumbrance or restriction with respect to a Restricted Subsidiary (x) pursuant to an agreement relating to any Indebtedness Incurred by such a Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company, or of another Person that is assumed by the Company or a Restricted Subsidiary in connection with the acquisition of assets from, or merger or consolidation with, such Person (other than Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company, or such acquisition of assets, merger or consolidation) and outstanding on the date of such dateacquisition, merger or consolidation or (y) pursuant to any agreement (not relating to any Indebtedness) in existence when a Person becomes a Subsidiary of the Company or when such agreement is acquired by the Company or any Subsidiary thereof, that is not created in contemplation of such Person becoming such a Subsidiary or such acquisition (for purposes of this clause (2), if another Person is the Successor Company, any Subsidiary or agreement thereof shall be deemed acquired or assumed, as the case may be, by the Company when such Person becomes the Successor Company);
(iv3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement for (a "Refinancing Agreement") effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refinances or replaces, an agreement referred to in clause (1) or (2) of this Section 4.5 or this clause (3) (an "Initial Agreement") or contained in any amendment to an Initial Agreement; provided, however, that the sale encumbrances and restrictions contained in any such Refinancing Agreement or other disposition amendment are no less favorable to the Holders of the Securities taken as a Restricted Subsidiary whole than encumbrances and restrictions contained in the Initial Agreement or assets that restrict distributions Initial Agreements to which such Refinancing Agreement or amendment relates (as conclusively determined in good faith by that Restricted Subsidiary or distributions the Board of those assets pending the sale or other dispositionDirectors);
(v4) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to , or the extent such encumbrance assignment or restriction restricts the transfer of the property subject to such security agreements or
any lease, license or other contract, (3B) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this the Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness of Foreign Subsidiaries permitted a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements or (D) pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(xv5) 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;
(6) any encumbrance or restriction existing under on the transfer of property or assets required by reason any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facilitytheir businesses; and
(xvi7) any encumbrance or restriction pursuant to (x) an agreement effecting relating to any Indebtedness incurred, or any sale of receivables, by a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this IndentureForeign Subsidiary.
Appears in 1 contract
Sources: Indenture (Telex Communications Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the Company;
Company or a Restricted Subsidiary, (b) make any loans or advances to the Company; or
Company or any other Restricted Subsidiary or (c) transfer any of its property or assets to the CompanyCompany or any other Restricted Subsidiary, exceptexcept for such encumbrances or restrictions existing under or by reason of:
(a) the Credit Facility or any other agreement or instrument as in effect on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, however, that such amendments, restatements, renewals, replacements or refinancings are no more materially restrictive with respect to such dividend and other payment restrictions than those contained in the case of clauses Credit Facility or such agreement (a)or, if more restrictive, than those contained in this Indenture) immediately prior to any such amendment, restatement, renewal, replacement or refinancing;
(b) and applicable law or any applicable rule, regulation or order;
(c):) any instrument governing Indebtedness or Capital Stock of an Acquired Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition); provided, however, that such restriction is not applicable to any Person, or the properties or assets of any Person, other than the Acquired Person;
(d) by reason of customary non-assignment provisions in leases or other agreements entered into the ordinary course of business and consistent with past practices;
(e) Capital Lease Obligations and Purchase Money Indebtedness that only impose restrictions on the property so acquired;
(f) an agreement for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary; provided, however, that such restriction is only applicable to such Restricted Subsidiary or assets, as applicable, and such sale or disposition otherwise is permitted under Section 10.16;
(g) Refinancing Indebtedness permitted under this Indenture; provided, however, that the restrictions contained in the agreements governing such Refinancing Indebtedness are no more materially restrictive in the aggregate than those contained in the agreements governing the Indebtedness being refinanced immediately prior to such refinancing;
(h) customary provisions in joint venture agreements, sale-leaseback agreements, partnership agreements, limited liability company operating agreements and other similar agreements;
(i) any encumbrance or restriction pursuant of (A) a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to applicable lawsuch Receivables Subsidiary or (B) an Equipment Subsidiary effected in connection with a Qualified Equipment Financing; provided, however, that such restrictions apply only to such Equipment Subsidiary;
(iij) any encumbrance or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as in effect or entered into on the Closing Date, Restricted Payment not prohibited by Section 10.10 and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this IndenturePermitted Investment;
(iiik) Indebtedness secured by a Lien otherwise permitted to be Incurred pursuant to Section 10.13 and Section 10.17 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(l) any encumbrance agreement or restriction with respect to a Restricted Subsidiary pursuant to an agreement instrument relating to any Indebtedness permitted to be Incurred by such Restricted Subsidiary prior subsequent to the date on which Issue Date by Section 10.13 (A) if the encumbrance and restrictions contained in any such Restricted Subsidiary was acquired by agreement or instrument taken as a whole are not materially less favorable to the Company holders of the Notes than the encumbrances and restrictions contained in this Indenture or the Credit Facility in effect as of the Issue Date (other than Indebtedness Incurred as consideration determined in or in contemplation of, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired good faith by the Company) or (B) the Company determines that such encumbrance or restriction will not materially affect the Company’s ability to make principal and outstanding interest payments on the Notes as and when they become due or (C) such dateencumbrance or restriction applies only if a default occurs in respect of a payment or a financial covenant relating to such Indebtedness;
(ivm) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements ; or
(3n) pursuant any encumbrances or restrictions of the type referred to Purchase Money Indebtedness for property acquired in Section 10.11(a), (b) and (c) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in Section 10.11(a) through (m); provided, however, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more materially 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. Notwithstanding the foregoing, neither (a) customary provisions restricting subletting or assignment of any lease entered into in the ordinary course of business that imposes restrictions business, consistent with past practice, nor (b) Liens permitted under this Indenture, shall in and of themselves be considered a restriction on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets the ability of the Company or any applicable Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or assets, as the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenturemay be.
Appears in 1 contract
Sources: Indenture (Terex Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the CompanyCompany (provided that dividend or liquidation priority between classes of Capital Stock, exceptor subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, in the case of clauses (awill not be deemed to constitute such an encumbrance or restriction), (b) and (c):
(i) except any encumbrance or restriction restriction:
(1) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Issue Date, and any amendmentsCredit Facility, modificationsthe Existing Unsecured Notes, restatementsthe Existing Unsecured Notes Indenture, renewalsthis Indenture, extensionsthe Notes, replacements and refinancings thereof on terms and conditions the Secured Notes or the indenture or collateral documentation with respect thereto;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such encumbrances and restrictions that are not materially more restrictivePerson, taken as a wholeor any other transaction entered into in connection with any such acquisition, than those encumbrances and restrictions with respect to such Indebtedness merger or consolidation, as in effect on at the date time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that for purposes of this Indentureclause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any agreement or 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 Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Holders of the Company (other Notes than Indebtedness Incurred as consideration encumbrances and restrictions contained in the Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such date);
(iv4) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of customary 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts agreements entered into in the ordinary course of business;
(vii5) (A) pursuant to any encumbrance agreement or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) 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 to a leasethereto, license or similar contract,
(2B) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness or other obligations of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any a Restricted Subsidiary and permitted to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits, net worth or inventory 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 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, or (I) pursuant to Hedging Obligations, Bank Products Obligations or Open Account Obligations;
(xv6) with respect to any encumbrance agreement for the direct or restriction existing under indirect disposition of Capital Stock, property or assets of any Person, property or assets, imposing restrictions with respect to such Person, Capital Stock, property or assets pending the closing of such sale or disposition;
(7) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03Captive Insurance Subsidiary; PROVIDED that such restrictions apply only to such Receivables Facility; andor
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred 8) pursuant to an agreement referred or instrument (A) relating to in any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.05(c)(i407 (i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company) or (ii) if such predecessor agreements encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any Credit Facility which is no less favorable sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained Financing Disposition by or to or in the Credit Agreement on the date favor of this Indentureany Receivables Subsidiary.
Appears in 1 contract
Sources: Indenture (L Brands, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Borrower shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any such Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
Borrower, (bii) make any loans or advances to the Company; or
Borrower or (ciii) transfer any of its property or assets to the CompanyBorrower, except, in the case of clauses :
(a), (b) and (c):
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing DateDate (including, and any amendmentswithout limitation, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this IndentureSenior Credit Facility);
(iiib) any encumbrance or restriction with respect to a Restricted Subsidiary (x) pursuant to an agreement relating to any Indebtedness Incurred by such a Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company Borrower, or of another Person that is assumed by the Borrower or a Restricted Subsidiary in connection with the acquisition of assets from, or merger or consolidation with, such Person (other than Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the CompanyBorrower, or such acquisition of assets, merger or consolidation) and outstanding on the date of such dateacquisition, merger or consolidation or (y) pursuant to any agreement (not relating to any Indebtedness) in existence when a Person becomes a Subsidiary of the Borrower or when such agreement is acquired by the Borrower or any Subsidiary thereof, that is not created in contemplation of such Person becoming such a Subsidiary or such acquisition (for purposes of this paragraph (b), if another Person is the Successor Company, any Subsidiary or agreement thereof shall be deemed acquired or assumed, as the case may be, by the Borrower when such Person becomes the Successor Company);
(ivc) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement for (a "Refinancing Agreement") effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refinances or replaces, an agreement referred to in Section 6.3(a) or (b) or this Section 6.3(c) or contained in any amendment to an agreement referred to in Section 6.3(a) or (b) or this Section 6.3(c) (an "Initial Agreement") or contained in any amendment to an Initial Agreement; provided, however, that the sale encumbrances and restrictions contained in any such Refinancing Agreement or other disposition of amendment are no less favorable to the Lenders taken as a Restricted Subsidiary whole than encumbrances and restrictions contained in the Initial Agreement or assets that restrict distributions by that Restricted Subsidiary Agreements to which such Refinancing Agreement or distributions of those assets pending the sale or other dispositionamendment relates;
(vd) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
, or the assignment or transfer of any lease, license or other contract, (2B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts restrictions restrict 59 54 the transfer of the property subject to such mortgages, pledges or other security agreements or
or (3D) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company Borrower or any Restricted Subsidiary;
(xve) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; and
(f) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date transfer of this Indentureproperty or assets required by any regulatory authority having jurisdiction over the Borrower or any Restricted Subsidiary or any of their businesses.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Renters Choice Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall Parent Guarantor will not, and shall will not permit any Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyParent Guarantor or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(b2) make any loans or advances to the CompanyParent Guarantor or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(c3) sell, lease or transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c):Parent Guarantor or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to applicable lawor by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date;
(ii) any encumbrance or restriction in any agreement with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness (including the Credit Agreement) as in effect Incurred by a Person on or entered into on the Closing Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on before the date on which such Person was acquired by the Parent Guarantor or another Restricted Subsidiary (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of this Indenturethe funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor or a Restricted Subsidiary or in contemplation of the transaction) and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(iii) 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 the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor or any Restricted Subsidiary in any manner material to the Parent Guarantor or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a 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 the Parent Guarantor or any other Restricted Subsidiary other than the assets and property so acquired;
(v) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor's ability to make principal or interest payments on the Securities, as determined in good faith by the Board of Directors of the Parent Guarantor, whose determination shall be conclusive;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any effecting a refunding, replacement or refinancing of Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in or in contemplation of, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company) and outstanding on such date;
(iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi) or contained in any encumbrance amendment, restatement, modification, renewal, supplemental, refunding, replacement or restriction existing by reason refinancing of provisions an agreement referred to in clauses (i) through (v) or clause (xii) of this paragraph or this clause (vi); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the disposition or distribution holders of assets or property in joint venture agreements, asset sale agreements, stock sale agreements the Securities than the encumbrances and other similar agreements;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into contained in the ordinary course of businessagreements governing the Indebtedness being refunded, replaced or refinanced;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c)3) of the first paragraph of this Section 3.4, any encumbrance or restriction:
(1a) 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 the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(2b) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor or a Restricted Subsidiary to the extent such encumbrance encumbrances or restriction restricts restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(c) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(d) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor or any Restricted Subsidiary;
(e) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(3f) pursuant provisions with respect to Purchase Money Indebtedness the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(viii) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that imposes impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 3.4 on that propertythe property so acquired;
(ix) encumbrances any encumbrance or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right 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 a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of the Company such sale or any Restricted Subsidiary not otherwise prohibited by this Indenturedisposition;
(x) any customary encumbrances and or restrictions contained in Indebtedness of Foreign Subsidiaries permitted imposed pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by any agreement of the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03type described in the definition of "Permitted Business Investment";
(xi) encumbrances or restrictions contained in indentures arising or other debt instrumentsexisting by reason of applicable law or any applicable rule, facilities regulation or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indentureorder;
(xii) encumbrances or restrictions contained in agreements governing Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are not materially less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors of the Parent Guarantor in good faith, than the provisions contained in the Senior Secured Credit Agreement and restrictions in this Indenture as in effect on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person)Issue Date;
(xiii) customary restrictions imposed on the transfer of, issuance of Preferred Stock by a Restricted Subsidiary or the payment of dividends thereon in licenses related to, copyrighted or patented materials or other intellectual property accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and customary provisions in agreements that the terms of such Preferred Stock do not expressly restrict the assignment ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such agreements Preferred Stock prior to paying any dividends or making any rights thereunder or the use of any other distributions on such rightsother Capital Stock);
(xiv) customary restrictions on real property interests set forth in easements supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements and similar arrangements of the Company or any Restricted Subsidiarydocuments and agreements;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility restrictions on cash or other contractual requirements deposits or net worth imposed by customers under contracts entered into in the ordinary course of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facilitybusiness; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Senior Secured Credit Agreement as in effect as of the Issue Date, and in any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are no more restrictive with respect to such dividend and other payment restrictions than those contained in the Senior Secured Credit Agreement as in effect on the date of this IndentureIssue Date.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the CompanyCompany (provided that dividend or liquidation priority between classes of Capital Stock, exceptor subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, in the case of clauses (awill not be deemed to constitute such an encumbrance or restriction), (b) and (c):
(i) except any encumbrance or restriction restriction:
(1) pursuant to applicable law;
(ii) any encumbrance an agreement or restriction in any agreement with respect to Indebtedness (including the Credit Agreement) as instrument in effect at or entered into on the Closing Issue Date, and any amendmentsCredit Facility, modificationsthe Existing Secured Notes, restatementsthe Existing Secured Notes Indenture, renewalsthis Indenture, extensionsor the Notes;
(2) pursuant to any agreement or instrument of a Person, replacements and refinancings thereof on terms and conditions or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with respect to or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such encumbrances and restrictions that are not materially more restrictivePerson, taken as a wholeor any other transaction entered into in connection with any such acquisition, than those encumbrances and restrictions with respect to such Indebtedness merger or consolidation, as in effect on at the date time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that for purposes of this Indentureclause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred by or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any agreement or 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 Restricted Subsidiary prior Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the date on which such Restricted Subsidiary was acquired by Holders of the Company (other Notes than Indebtedness Incurred as consideration encumbrances and restrictions contained in the Initial Agreement or in contemplation of, the transaction or series of related transactions pursuant Initial Agreements to which such Restricted Subsidiary became a Restricted Subsidiary Refinancing Agreement or was otherwise acquired Amendment relates (as determined in good faith by the Company) and outstanding on such date);
(iv4) any encumbrance or restriction (A) pursuant to an any agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) 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 to a leasethereto, license or similar contract,
(2B) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances and restrictions contained in mortgages, pledges or other security agreements securing Indebtedness or other obligations of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any a Restricted Subsidiary and permitted to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment restricting dispositions of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits, net worth or inventory 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 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, or (I) pursuant to Hedging Obligations or Bank Products Obligations;
(xv5) with respect to any encumbrance agreement for the direct or restriction existing under indirect disposition of Capital Stock, property or assets of any Person, property or assets, imposing restrictions with respect to such Person, Capital Stock, property or assets pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03Captive Insurance Subsidiary; PROVIDED that such restrictions apply only to such Receivables Facility; andor
(xvi7) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred or instrument (A) relating to in any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.05(c)(i407 (i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that if the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement instrument taken as a whole are no not materially less favorable to the Holders taken as a whole of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company) or (ii) if such predecessor agreements encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any Credit Facility which is no less favorable sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to the Holders taken as Indebtedness of or a whole than the encumbrances contained Financing Disposition by or to or in the Credit Agreement on the date favor of this Indentureany Special Purpose Entity.
Appears in 1 contract
Sources: Indenture (US Foods Holding Corp.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company;
(b2) make any loans or advances to the Company; or
(c3) transfer any of its property or assets to the Company, except, in the case of clauses (a), (b) and (c)::
(iA) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance , rule, regulation or restriction in any order or an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Issue Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
(iiiB) any encumbrance or restriction with respect to a Restricted Subsidiary Subsidiary, or assets of a Restricted Subsidiary, pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by or merged with the Company or any Restricted Subsidiary or the date the assets were acquired by the Company or any Restricted Subsidiary (other than Indebtedness Incurred as consideration in or in, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by or merged with the Company) and outstanding on such date;
(iv) any encumbrance or restriction pursuant to an agreement for the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viiiC) in the case of clause (c3), any encumbrance or restriction:
(1i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,;
(2ii) contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements oror mortgages;
(3iii) pursuant existing under, by reason of or with respect to (x) Purchase Money Indebtedness for property acquired in the ordinary course of business or (y) Capitalized Lease Obligations or operating leases that imposes restrictions on that property;
(ix) impose encumbrances or restrictions that are on the property so acquired or were created by virtue covered thereby; or
(iv) arising or agreed to in the ordinary course of any transfer ofbusiness, agreement to transfer, or option or right with respect not relating to any Indebtedness, and that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained thereof in Indebtedness of Foreign Subsidiaries permitted pursuant any manner material to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03thereof;
(xiD) encumbrances any encumbrance or restrictions contained in indentures restriction on cash or other debt instrumentsdeposits or net worth imposed by customers or lessors or required by insurance, facilities surety or arrangements that are not materially more restrictivebonding companies, taken as a whole, than those contained in this Indenture governing each case under contracts entered into in the Notes or the Credit Agreement on the date ordinary course of this Indenturebusiness;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereofE) with respect to a Restricted Subsidiary, any encumbrance or restriction imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(F) provisions limiting the disposition or distribution of assets or property in joint venture, partnership or operating agreements, asset sale agreements, construction, service or supply agreements, sale-leaseback agreements, stock sale agreements and other property acquired similar agreements entered into in the ordinary course of business;
(G) any encumbrance or restriction existing under, by the Company reason of or with respect to Indebtedness Incurred by any Restricted Subsidiary (including pursuant permitted to be Incurred under Section 4.09, provided that the acquisition Company determines in good faith at the time such Indebtedness is Incurred that such encumbrance or restriction would not impair the ability of the Capital Stock Company to make payments of a Person)interest and principal on the Notes when due;
(xiiiH) customary restrictions imposed on the transfer of, any encumbrance or restriction in any agreement or instrument of a Receivables Subsidiary governing or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements connection with a Qualified Receivables Transaction; provided that restrict the assignment of such agreements or any rights thereunder restrictions apply only to such Receivables Subsidiary or the use of any Receivables that are subject to such rightsQualified Receivables Transaction;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xvI) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; andPermitted Liens;
(xviJ) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to (x) or by reason of an agreement effecting that such Subsidiary is a Refinancing party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided, that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Subsidiary;
(K) any encumbrance or restriction contained in any license, permit or other accreditation with a regulatory authority entered into in the ordinary course of business;
(L) any encumbrance or restriction which prohibits the payment or making of dividends or other distributions other than on a pro rata basis;
(M) existing under, by reason of or with respect to Indebtedness Incurred by Foreign Subsidiaries permitted to be Incurred under Section 4.09; or
(N) any encumbrance or restriction in connection with and pursuant to an agreement referred permitted refinancings, extensions, renewals or replacements of any encumbrance or restriction imposed pursuant to in Section 4.05(c)(iclauses (A) through (xviM) or contained in any amendmentof this covenant; provided, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVERhowever, that the encumbrances and restrictions contained in any such Refinancing agreement refinancings, extensions, renewals or amendmentreplacements, modification or replacement taken as a whole, are no not materially less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indentureagreements.
Appears in 1 contract
Sources: Indenture (Orbital Atk, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company;
Company or a Restricted Subsidiary, (b) make any loans or advances to the Company; or
Company or a Restricted Subsidiary or (c) transfer any of its property or assets to the CompanyCompany or a Restricted Subsidiary, except, in the case of :
(1) with respect to clauses (a), (b) and (c):),
(iA) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Merisant Issue Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
(iiiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company) and outstanding on such date;
(ivC) any encumbrance or restriction pursuant to an agreement for the sale effecting an amendment, modification, restatement, renewal, replacement or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i4.09(1)(A) through or 4.09(1)(B) or this clause (xviC) or contained in any amendment, modification or replacement amendment to an agreement referred to in Section 4.05(c)(i4.09(1)(A) through or 4.09(1)(B) or this clause (xviC), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such Refinancing refinancing agreement or amendment, modification or replacement amendment are no less favorable to the Holders taken as a whole Noteholders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements or agreements;
(yD) any encumbrance or restriction arising under any applicable law, rule, regulation or order;
(E) any encumbrance or restriction that (i) arises pursuant to the terms of any agreement entered into in connection with any Qualified Receivables Transaction and (ii) applies only to a Receivables Subsidiary; and
(F) any encumbrance or restriction if (i) such encumbrance or restriction only restricts the ability of Merisant to take such action, (ii) such encumbrance or restriction is set forth in the documentation governing a Credit Facility which Linked Hedge, (iii) such encumbrance or restriction is no not less favorable to the Holders taken as a whole Noteholders than the encumbrances contained corresponding encumbrance or restriction set forth in the Credit Agreement on Facility related to such Credit Linked Hedge, and (iv) the date corresponding encumbrance or restriction set forth in such Credit Facility is permitted under this covenant; and
(2) with respect to clause (c) only,
(A) any encumbrance or restriction consisting of this Indenturea customary nonassignment provision in a lease, license or similar ordinary course of business agreement;
(B) any restriction contained in a security agreement or mortgage securing Indebtedness of a Restricted Subsidiary to the extent such restriction restricts the transfer of the property subject to such security agreement or mortgage; and
(C) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition.
Appears in 1 contract
Sources: Indenture (Tabletop Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective effective, any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on or in respect of its Capital Stock to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company;
Company or any Restricted Subsidiary, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the CompanyCompany or any Restricted Subsidiary, except, in the case of clauses except for:
(a), (b) and (c):
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Issue Date, and any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on the date of this Indenture;
(iiib) 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 became a Subsidiary of, or was acquired by by, the Company (other than Indebtedness Incurred as consideration in in, or in contemplation ofto provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of, or was otherwise acquired by by, the Company) and outstanding on such date;
(ivc) any encumbrance or restriction pursuant to an agreement for relating to an acquisition of property, so long as the sale encumbrances or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending restrictions in such agreement relate solely to the sale or other dispositionproperty so acquired;
(vd) any encumbrance or restriction existing by reason pursuant to an agreement effecting a refinancing of provisions with respect Indebtedness Incurred pursuant to an agreement referred to in clause (a), (b) or (c) hereof or contained in any amendment to any such agreement; provided, however, that any encumbrance and any restriction contained in any such refinancing agreement or amendment is no less favorable to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements;
(vi) Securityholders than any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into contained in the ordinary course of business;such agreement; and
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viiie) in the case of clause (ciii), any encumbrance or restriction
restriction (1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contract,
property or asset, (2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created arising by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
Indenture or (x3) encumbrances arising or agreed to in the ordinary course of business and restrictions contained that does not, individually or in Indebtedness the aggregate, detract from the value of Foreign Subsidiaries permitted pursuant to Section 4.03 property or industrial revenue or similar bonds Incurred by assets of the Company or any Restricted Subsidiary and permitted pursuant in any manner material to Section 4.03;
(xi) encumbrances or restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indenture.
Appears in 1 contract
Sources: Indenture (Anacomp Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary toto take the following actions:
(a1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the CompanyCompany or any of its Restricted Subsidiaries;
(b2) make any loans or advances to the CompanyCompany or any of its Restricted Subsidiaries; or
(c3) transfer any of its property or assets to the Company, except, in the case Company or any of clauses (a), its Restricted Subsidiaries.
(b) and (c):The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing or by reason of:
(i1) The Company’s senior credit facility, and any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction additional agreements governing Indebtedness existing on the date of this Indenture, in any agreement with respect to Indebtedness (including the Credit Agreement) each case, as in effect or entered into on the Closing Datedate of this Indenture, and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the amendments, restatements, modifications, renewals, extensionssupplements, refundings, replacements and or refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as dividend and other payment restrictions than those contained in effect those agreements on the date of this Indenture;
(iii2) this Indenture, the Notes and the note guarantees;
(3) any encumbrance restriction with respect to a Restricted Subsidiary that is either:
(A) pursuant to an agreement relating to any Indebtedness (i) Incurred by a Restricted Subsidiary before the date on which such Restricted Subsidiary was acquired by the Company, or (ii) of another Person that is assumed by the Company or a Restricted Subsidiary in connection with the acquisition of assets from, or merger or consolidation with, such Person and is outstanding on the date of such acquisition, merger or consolidation; provided that any restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred either as consideration in in, or in contemplation offor the provision of any portion of the funds or credit support used to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company, or such acquisition of assets, merger or consolidation shall not be permitted pursuant to this clause (A); or
(B) pursuant to any agreement, not relating to any Indebtedness, existing when a Person becomes a Subsidiary of the Company or acquired by the Company or any of its Subsidiaries, that, in each case, is not created in contemplation of such Person becoming such a Subsidiary or such acquisition (it being understood for purposes of this clause (B) that if another Person is the Successor Company, any Subsidiary or agreement thereof shall be deemed acquired or assumed by the Company when such Person becomes the Successor Company), and, in the case of clauses (A) and outstanding on such date(B), which restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the properties or assets of the Person, so acquired;
(iv4) any encumbrance restriction with respect to a Restricted Subsidiary pursuant to an agreement (a “Refinancing Agreement") that effects a refinancing, extension, renewal or replacement of Indebtedness under an agreement referred to in this Section 4.08 (an “Initial Agreement") or contained in any amendment to an Initial Agreement; provided that the restrictions contained in any such Refinancing Agreement or amendment are not materially more restrictive, taken as a whole, than the restrictions contained in the Initial Agreement or Agreements to which such Refinancing Agreement or amendment relates;
(5) any restriction that is a customary restriction on subletting, assignment or transfer of any property or asset that is subject to a lease, license, asset sale or similar contract, or on the assignment or transfer of any lease, license or other contract;
(6) any restriction by virtue of a transfer, agreement to transfer, option, right, or Lien with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(7) any restriction contained in mortgages, pledges or other agreements securing Indebtedness of the Company or a Restricted Subsidiary to the extent such restriction restricts the transfer of the property subject to such mortgages, pledges or other security agreements;
(8) any restriction with respect to a Restricted Subsidiary, or any of its property or assets, imposed pursuant to an agreement for the sale or other disposition of a all or substantially all the Capital Stock or assets of such Restricted Subsidiary Subsidiary, or the property or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets are subject to such restriction, pending the closing of such sale or other disposition;
(v9) any encumbrance or restriction existing by reason of applicable law, rule, regulation or order;
(10) provisions with respect to limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(vi11) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii12) any encumbrance restrictions existing under Indebtedness or restriction existing by reason of restrictions on the transfer of assets that are the subject other contractual requirements of a Capitalized Lease Obligation permitted under Section 4.03Receivables Subsidiary in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Subsidiary;
(viii13) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract,
(2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(x) encumbrances and restrictions contained in Indebtedness of incurred by a Foreign Subsidiaries Subsidiary that is permitted to be incurred pursuant to Section 4.03 4.09 hereof; provided that such restrictions relate only to one or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and more Foreign Subsidiaries; or
(14) restrictions contained in Indebtedness that is permitted to be incurred pursuant to Section 4.03;
(xi) encumbrances or 4.09 hereof; provided that such restrictions contained in indentures or other debt instruments, facilities or arrangements that are not materially more restrictive, taken as a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date restrictions permitted by clauses (1) and (2) of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any encumbrance or restriction existing under or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03; PROVIDED that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date of this Indentureparagraph.
Appears in 1 contract
Sources: Indenture (Nutra Sales Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company shall Parent Guarantor will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not the Issuer or a Subsidiary Guarantor to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyParent Guarantor or any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(b2) make any loans or advances to the CompanyParent Guarantor or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(c3) sell, lease or transfer any of its property or assets to the Company, except, in the case of clauses (a), Parent Guarantor or any Restricted Subsidiary.
(b) and (c):The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to applicable lawor by reason of an agreement in effect at or entered into on the Issue Date, including, without limitation, this Indenture as in effect on such date;
(ii2) any encumbrance or restriction in any agreement with respect to a Person pursuant to or by reason of an agreement relating to any Capital Stock or Indebtedness Incurred by a Person on or before the date on which such Person was acquired by the Parent Guarantor or another Restricted Subsidiary (including other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the Credit Agreementfunds utilized to consummate, the transaction or series of related transactions pursuant to which such Person was acquired by the Parent Guarantor or a Restricted Subsidiary or in contemplation of the transaction) as and outstanding on such date; provided that any such encumbrance or restriction shall not extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than the assets and property of such acquired Person;
(3) encumbrances and restrictions contained in effect or contracts entered into on in the Closing Dateordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of the Parent Guarantor and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor or any amendments, modifications, restatements, renewals, extensions, replacements and refinancings thereof on terms and conditions Restricted Subsidiary in any manner material to the Parent Guarantor or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to a 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 encumbrances 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 restrictions that are any such encumbrance or restriction shall not materially more restrictive, taken as a whole, extend to any assets or property of the Parent Guarantor or any other Restricted Subsidiary other than those encumbrances the assets and restrictions property of such Unrestricted Subsidiary;
(5) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness as was Incurred if either (1) the encumbrance or restriction applies to such Foreign Subsidiary and its Subsidiaries only in effect the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Parent Guarantor determines that any such encumbrance or restriction will not materially affect the Parent Guarantor’s ability to make principal or interest payments on the date Securities, as determined in good faith by the Board of this IndentureDirectors of the Parent Guarantor, whose determination shall be conclusive;
(iii6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any effecting a refunding, replacement or refinancing of Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in or in contemplation of, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company) and outstanding on such date;
(iv) any encumbrance or restriction pursuant to an agreement for referred to in clauses (1) through (5) or clause (12) of this Section 3.4(b) or this clause (6) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (5) or clause (12) of this Section 3.4(b)or this clause (6); provided that the sale or other disposition of a encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the Holders than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refunded, replaced or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other dispositionrefinanced;
(v) any encumbrance or restriction existing by reason of 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;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viii7) in the case of clause (cSection 3.4(a)(3), any encumbrance or restriction:
(1A) 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 the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in oil and gas properties), license (including, without limitation, licenses of intellectual property) or other contract;
(2B) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Parent Guarantor or a Restricted Subsidiary to the extent such encumbrance encumbrances or restriction restricts restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(C) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor or any Restricted Subsidiary;
(E) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(3F) pursuant provisions with respect to Purchase Money Indebtedness the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(8) any encumbrance or restriction contained in (a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that imposes impose encumbrances or restrictions of the nature described in Section 3.4(a)(3) on that propertythe property so acquired;
(ix9) 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 of all or a portion of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(10) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”;
(11) encumbrances or restrictions that are arising or were created existing by virtue reason of any transfer of, agreement to transfer, or option or right with respect to any property or assets of the Company applicable law or any Restricted Subsidiary not otherwise prohibited by this Indentureapplicable rule, regulation or order;
(x) encumbrances and restrictions contained in Indebtedness of Foreign Subsidiaries permitted pursuant to Section 4.03 or industrial revenue or similar bonds Incurred by the Company or any Restricted Subsidiary and permitted pursuant to Section 4.03;
(xi12) encumbrances or restrictions contained in indentures agreements governing Indebtedness of the Parent Guarantor or other debt instruments, facilities any of its Restricted Subsidiaries permitted to be Incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 3.2; provided that the provisions relating to such encumbrance or arrangements that restriction contained in such Indebtedness are not materially more restrictive, less favorable to the Parent Guarantor taken as a whole, as determined by the Board of Directors or a responsible financial officer of the Parent Guarantor in good faith, than those the provisions contained in the Senior Secured Credit Agreements and in this Indenture governing the Notes or the Credit Agreement as in effect on the date of this IndentureIssue Date;
(xii13) encumbrances and restrictions on the date issuance of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property acquired Preferred Stock by the Company or any a Restricted Subsidiary (including or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 3.2 and the acquisition terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock of a Person(other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(xiii14) customary restrictions imposed on the transfer ofsupermajority voting requirements existing under corporate charters, or in licenses related tobylaws, copyrighted or patented materials or other intellectual property stockholders agreements and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rightssimilar documents and agreements;
(xiv15) customary restrictions on real property interests set forth cash or other deposits or net worth imposed by customers under contracts entered into in easements and similar arrangements the ordinary course of the Company or any Restricted Subsidiary;business; and
(xv16) any encumbrance or restriction existing under contained in the Senior Secured Credit Agreements as in effect as of the Issue Date, and in any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or by reason of a Receivables Facility or other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03refinancings thereof; PROVIDED provided that such restrictions apply only to such Receivables Facility; and
(xvi) any encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(c)(i) through (xvi) or contained in any amendment, modification or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement refinancings are no not materially less favorable to the Holders Parent Guarantor taken as a whole whole, as determined by the Board of Directors or a responsible financial officer of the Parent Guarantor in good faith, than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances those contained in the Senior Secured Credit Agreement Agreements as in effect on the date of this IndentureIssue Date.
Appears in 1 contract
Sources: Indenture (Ultra Petroleum Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any such Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations obligation owed to the Company;
, (bii) make any loans or advances to the Company; or
Company or (ciii) transfer any of its property or assets to the Company, except, in the case of clauses : (a), (b) and (c):
(i) any encumbrance or restriction pursuant to applicable law;
(ii) any encumbrance or restriction in any an agreement with respect to Indebtedness (including the Credit Agreement) as in effect at or entered into on the Closing Issue Date, including the New Credit Facility and any amendmentsthe indenture between COMFORCE Operating, modificationsInc. and Wilmington Trust Company, restatementsas trustee, renewalsdated as of November 26, extensions, replacements and refinancings thereof on terms and conditions with respect to such encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those encumbrances and restrictions with respect to such Indebtedness as in effect on 1997 (the date of this "Notes Indenture;
"); (iiib) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred issued by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Company and outstanding on such date (other than Indebtedness Incurred as consideration in anticipation of, or in contemplation ofto provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Company or was otherwise acquired by the Company) and outstanding on such date;
); (ivc) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement for evidencing Indebtedness Incurred without violation of this Indenture or effecting a refinancing of Indebtedness issued pursuant to an agreement referred to in clauses (a) or (b) or this clause (c) or contained in any amendment to an agreement referred to in clauses (a) or (b) or this clause (c); provided, however, that the sale or other disposition of a Restricted Subsidiary or assets that restrict distributions by that Restricted Subsidiary or distributions of those assets pending the sale or other disposition;
(v) any encumbrance or restriction existing by reason of provisions encumbrances and restrictions with respect to such Restricted Subsidiary contained in any of such agreement, refinancing agreement or amendment, taken as a whole, are no less favorable to the disposition holders of the Securities in any material respect, as determined in good faith by the Board of Directors of the Company, than encumbrances and restrictions with respect to such Restricted Subsidiary contained in agreements in effect at, or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements;
(vi) any encumbrance or restriction existing by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in on, the ordinary course of business;
Issue Date; (vii) any encumbrance or restriction existing by reason of restrictions on the transfer of assets that are the subject of a Capitalized Lease Obligation permitted under Section 4.03;
(viiid) in the case of clause (ciii), any encumbrance or restriction
restriction (1A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contract,
property or asset, (2B) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or
(3) pursuant to Purchase Money Indebtedness for property acquired in the ordinary course of business that imposes restrictions on that property;
(ix) encumbrances or restrictions that are or were created by virtue of any transfer of, agreement to transfer, or option or right with respect to to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
, (xC) encumbrances that is included in a licensing agreement to the extent such restrictions limit the transfer of the property subject to such licensing agreement or (D) arising or agreed to in the ordinary course of business and restrictions contained that does not, individually or in Indebtedness the aggregate, detract from the value of Foreign Subsidiaries permitted pursuant to Section 4.03 property or industrial revenue or similar bonds Incurred by assets of the Company or any of its Subsidiaries in any manner material to the Company or any such Restricted Subsidiary and permitted pursuant to Section 4.03;
Subsidiary; (xie) encumbrances or in the case of clause (iii) above, restrictions contained in indentures security agreements, mortgages or other debt instrumentssimilar documents securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements; (f) in the case of clause (iii) above, facilities any instrument governing or arrangements that are not materially more restrictive, taken as evidencing Indebtedness of a whole, than those contained in this Indenture governing the Notes or the Credit Agreement on the date of this Indenture;
(xii) encumbrances and restrictions on the date of acquisition (and not Incurred in contemplation thereof) with respect to any assets or other property Person acquired by the Company or any Restricted Subsidiary (including pursuant to the acquisition of the Capital Stock of a Person);
(xiii) customary restrictions imposed on the transfer of, or in licenses related to, copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the assignment of such agreements or any rights thereunder or the use of any such rights;
(xiv) customary restrictions on real property interests set forth in easements and similar arrangements of the Company or any Restricted Subsidiary;
(xv) any at the time of such acquisition, which encumbrance or restriction existing under is not applicable to any Person, or by reason the properties or assets of a Receivables Facility or any Person, other contractual requirements of a Receivables Facility permitted pursuant to Section 4.03than the Person so acquired; PROVIDED provided, however, that such restrictions apply only Indebtedness is not incurred in connection with or in contemplation of such acquisition; (g) any restriction with respect to such Receivables Facility; and
(xvi) any encumbrance or restriction pursuant to (x) an agreement effecting a Refinancing of Indebtedness Incurred Restricted Subsidiary imposed pursuant to an agreement referred to in Section 4.05(c)(ientered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition; and (h) through (xvi) encumbrances or contained in any amendment, modification restrictions arising or replacement to an agreement referred to in Section 4.05(c)(i) through (xvi), in each case as applicable; PROVIDED, HOWEVER, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment, modification or replacement are no less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such predecessor agreements or (y) any Credit Facility which is no less favorable to the Holders taken as a whole than the encumbrances contained in the Credit Agreement on the date existing by reason of this Indentureapplicable law.
Appears in 1 contract
Sources: Indenture (Comforce Corp)