Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to: (a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of 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), (b) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or (c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); except: (i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility; (ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors); (iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts; (v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; (vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity; (vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; (viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13; (ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business; (x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement; (xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; (xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements; (xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and; (xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, 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:
(a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Borrower Company or any other Restricted Subsidiary (it being understood that the priority of 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),Subsidiary;
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Subsidiary; or
(c) transfer any of its property or assets Property to the Borrower Company or any other Restricted Subsidiary Subsidiary. The foregoing limitations will not apply:
(it being understood that such transfers shall not include any type of transfer described in clause 1) with respect to clauses (a) or ), (b) aboveand (c); except, to restrictions:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or ;
(B) relating to Debt of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to and existing at the date on which such Restricted Subsidiary was acquired by the Borrower or time it became a Restricted Subsidiary (other than Capital Stock issued if such restriction was not created in connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such dateCompany;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement that result from the Refinancing of Indebtedness Debt Incurred pursuant to an agreement referred to in the preceding clauses clause (i1)(A) or (iiB) above or this in clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i2)(A) or (iiB) or this clause (iii); providedbelow, however, that the encumbrances and restrictions contained in any provided such agreement are not materially restriction is no less favorable to the LendersHolders in any material respect, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as reasonably determined in good faith by the Board of DirectorsDirectors (as evidenced by a Board Resolution), than those under the agreement evidencing the Debt so Refinanced;
(ivD) resulting from the Incurrence of any Debt permitted pursuant to Section 4.03, provided that (i) the restriction is no -------- less favorable to the Holders in any material respect, as reasonably determined by the Board of Directors (as evidenced by a Board Resolution), than the restrictions of the same type contained in this Indenture and (ii) the Board of Directors determines (as evidenced by a Board Resolution) in good faith that such restrictions will not impair the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets ability of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness Company to make payments of a Restricted Subsidiary to principal and interest on the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsSecurities when due;
(vE) existing by reason of applicable law; or
(F) any restriction contractual requirements incurred with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction Transactions relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors, are necessary to effect such customary for Qualified Receivables TransactionTransactions; provided that such restrictions apply only to such Receivables Entity;and
(vii2) any customary provisions in leaseswith respect to clause (c) only, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;to restrictions:
(viiiA) any encumbrance or restriction pursuant relating to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided Debt that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case is permitted to be Incurred and secured pursuant to Sections 4.03 and 4.05 that limit the provisions right of Section 6.13the debtor to dispose of the Property securing such Debt;
(ixB) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary, so long as such restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such acquisition;
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in joint venture other agreements and other similar that restrict assignment of such agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;or rights thereunder; or
(xD) customary provisions restrictions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business relating to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract sale or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in disposition of Property limiting the ordinary course transfer of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to Property pending the assets that are the subject closing of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawsuch sale.
Appears in 1 contract
Sources: Indenture (Rite Aid Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, 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 Borrower or any other Restricted Subsidiary Company, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above)Company; except:
(ia) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this the Credit Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or ; (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iib) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement relating to any Capital Indebtedness or Preferred Stock of or Indebtedness Incurred issued by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company and outstanding on such date (other than Capital Indebtedness or Preferred Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Borrower) and outstanding on such date;
Company); (iiic) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement evidencing Indebtedness Incurred without violation of this Indenture or effecting a refinancing, refunding or replacement refinancing of Indebtedness Incurred issued pursuant to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any of such agreement, refinancing agreement or amendment, taken as a whole, are not materially less favorable to the LendersHolders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the senior management of the Company or Board of Directors);
, than encumbrances and restrictions with respect to such Restricted Subsidiary contained in agreements in effect at, or entered into on, the Issue Date; (ivd) in the case of clause (ciii) of this Section 6.034.5, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contractproperty or asset, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower Company or any Restricted Subsidiary not otherwise prohibited by this AgreementIndenture, (C) 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 that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any of its Subsidiaries in any manner material to the Company or any such Restricted Subsidiary as determined in good faith by senior management of the Company; (e) in the case of clause (iii) of this Section 4.5, restrictions contained in security agreements agreements, mortgages or similar documents securing 47 41 Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and agreements; (D) ordinary course provisions restricting the assignability of contracts;
(vf) any restriction with respect to such 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;
; (vig) encumbrances or restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination respect to Indebtedness of the Board of Directors, are necessary to effect such Qualified Receivables TransactionForeign Subsidiaries; provided that such restrictions apply only to such Receivables Entity;
(viii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will do not materially affect limit in any manner the Borrower's ability to make anticipated principal and interest payments of the Restricted Subsidiaries of the Company in existence on the Loans (as determined in good faith by the Board of Directors Issue Date from performing any of the Borroweracts referred to in clauses (i) or through (yiii) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to this Section 4.5 and (ii) the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions aggregate principal amount of the type described in clause Indebtedness of the Foreign Subsidiaries of the Company which includes such an encumbrance or restriction does not exceed $50.0 million; and (ch) above on the property subject to such lease, license, contract encumbrances or other similar agreement;
(xi) restrictions on cash arising or other deposits or net worth imposed existing by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation reason of applicable law.
Appears in 1 contract
Sources: Indenture (Viasystems Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any 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 (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsCompany, 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),
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company except:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary or its property or assets pursuant to an agreement relating to any Capital Indebtedness or Preferred Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Indebtedness or Preferred Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness or Preferred Stock Incurred pursuant to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.17 or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.17 or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially in the aggregate no less favorable to the Lenders, taken as a whole, Securityholders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors)predecessor agreements;
(iv) in any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the case sale or disposition of clause all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(cv) any encumbrances and restrictions existing under or by reason of this Section 6.03, applicable law or regulation;
(vi) any encumbrance or restriction encumbrances and restrictions (A) that restricts restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contractproperty or asset, (B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower Company or any Restricted Subsidiary not otherwise prohibited by this Agreement, Indenture or (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary arising or agreed to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting of business not relating to any Indebtedness, and that do not (as determined by the assignability of contracts;
(v) any restriction with respect to Company and certified in a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination resolution of the Board of DirectorsDirectors or a certificate of the chief financial or chief accounting officer of the Company delivered to the Trustee prior to or promptly following such encumbrance or restriction becoming effective), are necessary individually or in the aggregate, (1) detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to effect such Qualified Receivables Transaction; provided that such restrictions apply only the Company or any Restricted Subsidiary or (2) materially adversely affect the Company's ability to such Receivables Entitymake principal or interest (including Special Interest, if any) payments on the Securities;
(vii) any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Securities than is customary provisions in leases, subleases or licenses and other agreements entered into comparable financings (as determined by the Borrower Company and certified in a resolution of the Board of Directors or any Restricted Subsidiary a certificate of the chief financial or chief accounting officer of the Company delivered to the Trustee prior to or promptly following such encumbrance or restriction becoming effective), and (C) such encumbrance or restriction will not materially adversely affect the Company's ability to make principal or interest (including Special Interest, if any) payments on the Securities (as determined by the Company and certified in a resolution of the ordinary course Board of business;Directors or a certificate of the chief financial or chief accounting officer of the Company delivered to the Trustee prior to or promptly following such encumbrance or restriction becoming effective); and
(viii) any encumbrance or restriction pursuant resulting from any financing transaction involving the sale of Receivables or aircraft and/or related engines, spare parts and equipment to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors special purpose Subsidiary of the BorrowerCompany formed to effect such financing and which applies only to such special purpose Subsidiary and its assets. Nothing contained in this Section 4.17 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.12 or (y2) restricting the sale or other Indebtedness disposition of property or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions assets of the type described in clause (c) above on Company or any of its Restricted Subsidiaries that secure Indebtedness of the property subject to such lease, license, contract Company or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course any of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawits Restricted Subsidiaries.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsCompany, 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),
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(i1) with respect to clauses (a), (b) and (c) of this Section 5.05,
(A) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Date, including pursuant Issue Date (after giving effect to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) use of the type imposed by net proceeds of the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to sale of the permissions of Section 6.13; provided that Notes as described in the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit FacilityOffering Circular);
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
(iiiC) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (A) or (B) of this Section 5.05(1) or this clause (C) or contained in any amendment to an agreement referred to in clause (A) or (B) of this Section 5.05(1) or this clause (C); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable in any material respect to the Noteholders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;
(D) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositiondisposition and so long as the consummation of such transaction would not result in a Default or Event of Default;
(viE) any encumbrance or restriction under applicable corporate law or regulation relating to the payment of dividends or distributions;
(F) any encumbrance or restriction contained in the terms of any Indebtedness permitted to be Incurred under this Indenture; provided that such encumbrances or restrictions created are ordinary and customary with respect to the type of Indebtedness being Incurred if the Board of Directors determines that any such encumbrance or restriction will not adversely affect the Company's ability to make principal or interest payments on the Notes; and
(G) any encumbrance or restriction with respect to Indebtedness or other contractual requirements of a Securitization Subsidiary in connection with a Qualified Receivables Transaction thatand, in the good faith determination of the Board of Directors, are necessary to effect such effectuate, a Qualified Receivables Securitization Transaction; provided provided, however, that such restrictions apply encumbrance or restriction applies only to such Receivables Entity;Securitization Subsidiary; and
(vii2) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course with respect to clause (c) of business;this Section 5.05 only,
(viiiA) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock consisting of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary nonassignment provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business leases governing leasehold interests to the extent such obligations impose restrictions provisions restrict the transfer of the type described lease or the property leased thereunder; and
(B) any encumbrance or restriction contained in clause (c) above on 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 lease, license, contract security agreements or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawmortgages.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability legal right of any Restricted Subsidiary to:
to (ai) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock or Redeemable Stock, or pay any Indebtedness or other obligations owed obligation owed, to the Borrower Company or any other Restricted Subsidiary, (ii) make loans or advances to the Company or any other Restricted Subsidiary or (it being understood that the priority of 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),
(b) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets Property to the Borrower Company or any other Restricted Subsidiary (it being understood that such transfers shall Subsidiary. Such limitation will not include any type of transfer described in clause apply (a) or (b) above); except:
with respect to clauses (i), (ii) any and (iii), to encumbrances and restrictions (1) in Bank Credit Facilities and other agreements and instruments, in each case as in effect on the Issue Date, (2) relating to Indebtedness of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such encumbrance or restriction (A) pursuant to an agreement was not created in effect at or entered into on the Effective Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock anticipation of or Indebtedness Incurred by such Restricted Subsidiary prior to in connection with the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by (3) which result from the Borrowerrenewal, refinancing, extension or amendment of an agreement that is the subject of clause (a) and outstanding on (1) or (2) above or clause (b) (1) or (2) below; PROVIDED that such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are is not materially less favorable to the LendersHolders of Securities than those under or pursuant to the agreement so renewed, taken as a wholerefinanced, than the original encumbrances extended or amended, and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(ivb) in the case of with respect to clause (ciii) only, to (1) any restriction on the sale, transfer or other disposition of this Section 6.03Property relating to Indebtedness that is permitted to be Incurred and secured under Sections 4.03 and 4.10, (2) any encumbrance or restriction (A) that restricts in a customary manner applicable to Property at the subletting, assignment time it is acquired by the Company or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent Subsidiary, so long as such encumbrance or restriction relates solely to the Property so acquired and was not created in anticipation of or in connection with such acquisition, (3) customary provisions restricting subletting or assignment of leases and customary provisions in other agreements that restrict assignment of such agreements or rights thereunder and (4) customary restrictions restrict contained in asset sale agreements limiting the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawsale.
Appears in 1 contract
Sources: Indenture (Forest Oil Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(a) to pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any other a Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsSubsidiary, 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),
(b) to make any loans or advances to the Borrower Company or any other a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) to transfer any of its property or assets to the Borrower Company or any other a Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (bd) above); grant to the Trustee a Lien on any of its Property, except:
: (i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Closing Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.05 or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.05 or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially no less favorable to the Lenders, taken as a whole, Securityholders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors);
agreements; (iv) any such encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder; (v) in the case of clause (c) of this Section 6.03above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and mortgages; (D) ordinary course provisions restricting the assignability of contracts;
(vvi) 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;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
and (vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course case of business;
clause (viiid) any encumbrance above, restrictions contained in instruments related to or restriction pursuant to creating Permitted Liens under clauses (xf), (i), (j) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors n) of the Borrower) or (y) other Indebtedness or Preferred Stock definition of a Subsidiary Guarantor"Permitted Liens", in each case permitted provided such restrictions relate only to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawPermitted Liens.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
: (a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any other Restricted Subsidiary Subsidiary; (it being understood that the priority of 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 Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Subsidiary; 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 Borrower Company or any other Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall not include any type b) The provisions of transfer described in clause Section 3.5
(a) or will not prohibit: (b) above); except:
(i1) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective DateIssue Date (including, including pursuant to without limitation, this Agreement, Indenture and the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or Senior Debt Agreements in effect on such date); (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (1) of this paragraph or this clause (2) or contained in any amendment to an agreement referred to in clause (1) of this paragraph or this clause (2); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or amendment are no less favorable in any material respect to the Holders of the Securities than the encumbrances and restrictions contained in such agreements referred to in clause (1) of this paragraph on the Issue Date; (3) in the case of Section 3.5(a)(3), any encumbrance or restriction: (A) that restricts in a customary manner the subletting, assignment or transfer of any Property that is subject to a lease, license, joint operating agreement, area of mutual interest agreement, production sharing contract, transportation agreement or similar contract, or the assignment or transfer of any such contract; (B) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the Property subject to such mortgages, pledges or other security agreements; (C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary; or (D) arising or agreed to in the ordinary course of business and that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any of its Restricted Subsidiaries in any manner material to the Company or any such Restricted Subsidiary as determined in good faith by senior management or the Board of Directors of the Company; (4) purchase money obligations for property acquired in the ordinary course of business that impose encumbrances or restrictions of the nature described in Section 3.5(a)(3) on the property so acquired; (5) 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) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order; (7) customary provisions with respect to the distribution of assets or property in joint venture agreements; (8) any encumbrance or restriction with respect to such Restricted Subsidiary pursuant to an agreement relating to any Capital Indebtedness or Preferred Stock of or Indebtedness Incurred issued by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or a Restricted Subsidiary (Company and outstanding on such date, other than Capital Indebtedness or Preferred Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the BorrowerCompany; (9) restrictions relating to Subsidiary Preferred Stock that require that due and outstanding payable dividends thereon be paid in full prior to dividends on such date;
Restricted Subsidiary's common stock; and (iii10) any encumbrance agreement or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding charter provision evidencing Indebtedness or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or Capital Stock permitted under this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii)Indenture; provided, however, that the encumbrances and restrictions provisions relating to such encumbrance or restriction contained in any such agreement or charter provision are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or Company in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with material 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 Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to Company than the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions encumbrance or restriction contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawthis Indenture.
Appears in 1 contract
Sources: Indenture (Triton Energy LTD)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of 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),Borrower;
(b2) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Borrower; or
(c3) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Borrower, except:
(iA) any encumbrance or restriction (A) pursuant to applicable law, rule, regulation or order or an agreement in effect at or entered into on the Effective Restatement Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Borrower) and outstanding on such date;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (iSection 6.03(3)(A) or (iiSection 6.03(3)(B) or this clause (iiiSection 6.03(3)(C) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses (iSection 6.03(3)(A) or (iiSection 6.03(3)(B) or this clause (iiiSection 6.03(3)(C); provided, however, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment are not materially no less favorable in any material respect to the Lenders, taken as a whole, Lenders than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors)predecessor agreements;
(ivD) in the case of clause (c) of this Section 6.036.03(3), any encumbrance or restriction restriction:
(Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue or the assignment or transfer of any transfer ofsuch lease, agreement to transfer, option license or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, other contract; or
(Cii) contained in mortgages, pledges and other security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsagreements;
(vE) any restriction with respect to a Restricted Subsidiary (or Subsidiary, any of its property or assets) restriction imposed pursuant to an agreement entered into for the 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;
(viF) restrictions created any encumbrance or restriction existing under or by reason of Indebtedness or other contractual requirements of a Receivables Entity in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided provided, however, that such restrictions apply only to such Receivables Entity;
(viiG) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into purchase money obligations for property acquired in the ordinary course of business to the extent such obligations and Capitalized Lease Obligations that impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract purchased or other similar agreementleased of the nature described in Section 6.03(3);
(xiH) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements;
(I) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into customers, suppliers or, in the ordinary course of business;, other third parties; and
(xiiJ) customary provisions with respect to any Foreign Restricted Subsidiary, any encumbrance or restriction contained in operating the terms of any Indebtedness, or other similar agreementsany agreement pursuant to which such Indebtedness was issued, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;if:
(xiiii) customary provisions restricting assignment of any agreement entered into the encumbrance or restriction applies only in the ordinary course event of businessa payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement; and;or
(xivii) any at the time such Indebtedness is Incurred, such encumbrance or restriction created is not expected to materially affect the Borrower’s ability to make principal or interest payments on the Obligations, as determined in good faith by operation a Financial Officer of applicable lawthe Borrower, whose determination shall be conclusive.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any 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 Borrower or any other Restricted Subsidiary Company, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause Company; except: (a) or (b) above); except:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Closing Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iib) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement relating to any Capital Indebtedness or Preferred Stock of or Indebtedness Incurred issued by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company and outstanding on such date (other than Capital Indebtedness or Preferred Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Borrower) and outstanding on such date;
Company); (iiic) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement evidencing Indebtedness Incurred without violation of this Indenture or effecting a refinancing, refunding or replacement refinancing of Indebtedness Incurred issued pursuant to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any of such agreement, refinancing agreement or amendment, taken as a whole, are not materially less favorable to the LendersHolders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the senior management of the Company or Board of Directors);
, than encumbrances and restrictions with respect to such Restricted Subsidiary contained in agreements in effect at, or entered into on, the Issue Date; (ivd) in the case of clause (ciii) of this Section 6.034.09, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contractproperty or asset, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower Company or any Restricted Subsidiary not otherwise prohibited by this AgreementIndenture, (C) 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 that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any of its Subsidiaries in any manner material to the Company or any such Restricted Subsidiary as determined in good faith by senior management of the Company; (e) in the case of clause (iii) of this Section 4.09, restrictions contained in security agreements agreements, mortgages or similar documents securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and agreements; (D) ordinary course provisions restricting the assignability of contracts;
(vf) any restriction with respect to such 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;
; (vig) encumbrances or restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination respect to Indebtedness of the Board of Directors, are necessary to effect such Qualified Receivables TransactionForeign Subsidiaries; provided that such restrictions apply only to such Receivables Entity;
(viii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will do not materially affect limit in any manner the Borrower's ability to make anticipated principal and interest payments of the Restricted Subsidiaries of the Company in existence on the Loans (as determined in good faith by the Board of Directors Issue Date from performing any of the Borroweracts referred to in clauses (i) or through (yiii) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to this Section 4.09 and (ii) the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions aggregate principal amount of the type described in clause Indebtedness of the Foreign Subsidiaries of the Company which includes such an encumbrance or restriction does not exceed $50.0 million; and (ch) above on the property subject to such lease, license, contract encumbrances or other similar agreement;
(xi) restrictions on cash arising or other deposits or net worth imposed existing by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation reason of applicable law.
Appears in 1 contract
Sources: Indenture (Viasystems Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability right of any Restricted Subsidiary to:
(a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Borrower or any other Restricted Subsidiary (it being understood that the priority of 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),Subsidiary;
(b) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Subsidiary; or
(c) transfer any of its property or assets Property to the Borrower or any other Restricted Subsidiary Subsidiary. The foregoing limitations will not apply:
(it being understood that such transfers shall not include any type of transfer described in clause 1) with respect to clauses (a) or ), (b) aboveand (c); except, to restrictions:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Closing Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or ;
(B) relating to Debt of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to and existing at the date on which such Restricted Subsidiary was acquired by the Borrower or time it became a Restricted Subsidiary (other than Capital Stock issued if such restriction was not created in connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement that result from the Refinancing of Indebtedness Debt Incurred pursuant to an agreement referred to in the preceding clauses clause (i1)(A) or (iiB) above or this in clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i2)(A) or (iiB) or this clause (iii)below; provided, however, provided that the encumbrances and restrictions contained in any such agreement are not materially restriction is no less favorable to the LendersLenders in any material respect, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as reasonably determined in good faith by the Board of Directors), than those under the agreement evidencing the Debt so Refinanced;
(ivD) resulting from the Incurrence of any Debt permitted pursuant to Section 6.01; provided that (i) (x) the restriction is no less favorable to the Lenders in any material respect, as reasonably determined by the Board of Directors, than the restrictions of the same type contained in this Agreement, or (y) the restriction is no less favorable to the Lenders in any material respect, as reasonably determined by the Board of Directors, than the restrictions of the same type contained in the case Senior Credit Agreement and (ii) the Board of clause (c) of this Section 6.03, any encumbrance or restriction (A) Directors determines in good faith that restricts in a customary manner such restrictions will not impair the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets ability of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness to make payments of a Restricted Subsidiary to principal and interest on the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsTerm Loans when due;
(vE) existing by reason of applicable law;
(F) any restriction contractual requirements incurred with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction Transactions relating exclusively to a Receivables Entity that, in the good faith determination of the Board principal financial officer of Directorsthe Borrower, are necessary to effect such customary for Qualified Receivables TransactionTransactions; provided or
(G) customary restrictions contained in joint venture and other similar agreements; and
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred without also securing the Term Loans or a Subsidiary Guarantee and secured pursuant to Sections 6.01 and 6.03 that limit the right of the debtor to dispose of the Property securing such restrictions apply only to such Receivables EntityDebt;
(viiB) any customary provisions in leases, subleases or licenses and other agreements entered into encumbering Property at the time such Property was acquired by the Borrower or any Restricted Subsidiary Subsidiary, so long as such restriction relates solely to the Property so acquired and was not created in the ordinary course connection with or in anticipation of businesssuch acquisition;
(viiiC) any encumbrance resulting from customary provisions restricting subletting or restriction pursuant to (x) assignment of leases or customary provisions in other Indebtedness agreements that restrict assignment of such agreements or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13rights thereunder;
(ixD) customary provisions restrictions contained in joint venture agreements and relating to the sale or other similar agreements (including stockholder agreements) relating solely to disposition of Property limiting the transfer of such joint venture, in each case entered into in Property pending the ordinary course closing of businesssuch sale;
(xE) customary provisions contained in leases, licenses, contracts and other similar agreements entered into resulting from purchase money obligations for Property acquired in the ordinary course of business to the extent such obligations or Capital Lease Obligations that impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;Property so acquired; or
(xiF) resulting from restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary Holdings, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower Holdings or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause Holdings, except (a) or (b) above); except:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Datedate of this Indenture (including, including pursuant to this Agreementwithout limitation, the Public Bond DocumentsCredit Agreement and the Senior Subordinated Notes); (b) any encumbrance or restriction imposed by Indebtedness incurred under the Credit Agreement in accordance with this Indenture, the Subsidiary Guaranteesprovided, the ABL Credit Facility, the Securitization Facility however that such encumbrance or (B) of the type restriction is not materially more restrictive than that imposed by the Prior European Facility or Credit Agreement as of the Issue Date; (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iic) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such a Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Holdings (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerHoldings) and outstanding on such date;
; (iiid) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (ia), (b) or (iic) of this covenant or this clause (iiid) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (ia) (b) or (iic) of this covenant or this clause (iiid); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or amendment are not materially less favorable to the Lenders, taken as a whole, more restrictive than the original encumbrances and restrictions contained in such agreements agreements; (as determined in good faith by the Board of Directors);
(ive) in the case of clause (ciii) of this Section 6.03above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract, (B) 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 Holdings or any Restricted Subsidiary not otherwise prohibited by this AgreementIndenture (including any Permitted Lien), (C) contained in mortgages, pledges or other security agreements securing Indebtedness of 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 the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the assignability of contracts;
Company or any Restricted Subsidiary; (vf) 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;
; (vig) encumbrances or restrictions arising or existing by reason of applicable law; (h) restrictions created on transfer contained in connection with a Qualified Receivables Transaction thatPurchase Money Indebtedness incurred pursuant to paragraph (b)(vii) of Section 3.3 of this Indenture, in provided such restrictions relate only to the good faith determination transfer of the Board property 49 43 acquired with the proceeds of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
Purchase Money Indebtedness and (viii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock the Senior Subordinated Note Indenture and the Senior Subordinated Notes of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawNebraska Book.
Appears in 1 contract
Sources: Indenture (NBC Acquisition Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability right of any Restricted Subsidiary to:
(a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Borrower or any other Restricted Subsidiary (it being understood that the priority of 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),Subsidiary;
(b) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Subsidiary; or
(c) transfer any of its property or assets Property to the Borrower or any other Restricted Subsidiary Subsidiary. The foregoing limitations will not apply:
(it being understood that such transfers shall not include any type of transfer described in clause 1) with respect to clauses (a) or ), (b) aboveand (c); except, to restrictions:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Closing Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or ;
(B) relating to Debt of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to and existing at the date on which such Restricted Subsidiary was acquired by the Borrower or time it became a Restricted Subsidiary (other than Capital Stock issued if such restriction was not created in connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement that result from the Refinancing of Indebtedness Debt Incurred pursuant to an agreement referred to in the preceding clauses clause (i1)(A) or (iiB) above or this in clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i2)(A) or (iiB) or this clause (iii)below; provided, however, provided that the encumbrances and restrictions contained in any such agreement are not materially restriction is no less favorable to the LendersLenders in any material respect, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as reasonably determined in good faith by the Board of Directors), than those under the agreement evidencing the Debt so Refinanced;
(ivD) resulting from the Incurrence of any Debt permitted pursuant to Section 6.01; provided that (i) (x) the restriction is no less favorable to the Lenders in any material respect, as reasonably determined by the Board of Directors, than the restrictions of the same type contained in this Agreement, or (y) the restriction is no less favorable to the Lenders in any material respect, as reasonably determined by the Board of Directors, than the restrictions of the same type contained in the case Senior Credit Agreement and (ii) the Board of clause (c) of this Section 6.03, any encumbrance or restriction (A) Directors determines in good faith that restricts in a customary manner such restrictions will not impair the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets ability of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness to make payments of a Restricted Subsidiary to principal and interest on the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsTerm Loans when due;
(vE) existing by reason of applicable law; or
(F) any restriction contractual requirements incurred with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction Transactions relating exclusively to a Receivables Entity that, in the good faith determination of the Board principal financial officer of Directorsthe Borrower, are necessary to effect such customary for Qualified Receivables TransactionTransactions; provided and
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred without also securing the Term Loans or a Subsidiary Guarantee and secured pursuant to Sections 6.01 and 6.03 that limit the right of the debtor to dispose of the Property securing such restrictions apply only to such Receivables EntityDebt;
(viiB) any customary provisions in leases, subleases or licenses and other agreements entered into encumbering Property at the time such Property was acquired by the Borrower or any Restricted Subsidiary Subsidiary, so long as such restriction relates solely to the Property so acquired and was not created in the ordinary course connection with or in anticipation of businesssuch acquisition;
(viiiC) any encumbrance resulting from customary provisions restricting subletting or restriction pursuant to (x) assignment of leases or customary provisions in other Indebtedness agreements that restrict assignment of such agreements or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13rights thereunder;
(ixD) customary provisions restrictions contained in joint venture agreements and relating to the sale or other similar agreements (including stockholder agreements) relating solely to disposition of Property limiting the transfer of such joint venture, in each case entered into in Property pending the ordinary course closing of businesssuch sale;
(xE) customary provisions contained in leases, licenses, contracts and other similar agreements entered into resulting from purchase money obligations for Property acquired in the ordinary course of business to the extent such obligations or Capital Lease Obligations that impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;Property so acquired; or
(xiF) resulting from restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, 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 Borrower or any other Restricted Subsidiary Company, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause Company, except: (a) or (b) above); except:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or ; (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iib) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred issued by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company and outstanding on such date (other than Capital Stock issued or Indebtedness Incurred as consideration inin anticipation of, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted -47- 54 Subsidiary of the Company or was acquired by the Borrower) and outstanding on such date;
Company); (iiic) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement evidencing Indebtedness Incurred without violation of this Indenture or effecting a refinancing, refunding or replacement refinancing of Indebtedness Incurred issued pursuant to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any of such agreement, refinancing agreement are not materially less favorable to the Lendersor amendment, taken as a whole, than are no less favorable to the original encumbrances and restrictions contained Holders of the Notes in such agreements (any material respect, as determined in good faith by the Board of Directors);
Directors of the Company, than encumbrances and restrictions with respect to such Restricted Subsidiary contained in agreements in effect at, or entered into on, the Issue Date; (ivd) in the case of clause (ciii) of this Section 6.034.08, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contractproperty or asset, (B) by virtue of any transfer of, agreement to transfer, option option, or right with respect to, or Lien on, any property or assets of the Borrower Company or any Restricted Subsidiary not otherwise prohibited by this AgreementIndenture, (C) 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 that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any of its Subsidiaries in any manner material to the Company or any such Restricted Subsidiary; (e) in the case of clause (iii) of this Section 4.08, restrictions contained in security agreements agreements, mortgages or similar documents securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests agreements; (f) in the owner case of such property clause (iii) of this Section 4.08, any instrument governing or in evidencing Indebtedness of a Person acquired by the Company or any Restricted Subsidiary of the Borrower Company at the time of such acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired; provided, however, that owns a direct such Indebtedness is not Incurred in connection with or indirect Equity Interest in contemplation of such owner and acquisition; (D) ordinary course provisions restricting the assignability of contracts;
(vg) any restriction with respect to such 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 of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
; and (vih) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith arising or existing by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation reason of applicable law.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Issuer shall not, and will shall not permit any Restricted Subsidiary to, 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:
(a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Borrower Issuer or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends, dividend or liquidating distributions prior to the dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Borrower Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Debt Incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) ), or
(c) sell, lease or transfer any of its property or assets Property to the Borrower Issuer or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); except. The foregoing limitations will not apply to restrictions:
(i) any encumbrance or restriction (Aa) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant including, but not limited to this the Existing Credit Agreement, the Public Bond DocumentsExisting Notes Indenture and the EUR Indenture, and (b) under the Subsidiary Guarantees, the ABL New Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit FacilityAgreement;
(ii) any encumbrance or restriction with respect relating to Debt of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to existing at the date on which such Restricted Subsidiary was acquired by the Borrower or time it became a Restricted Subsidiary (other than Capital Stock issued if such restriction was not created in connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such dateIssuer;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in that result from any amendment, restatement, modification, renewal, supplement, rewritingextension, replacement or refinancing Refinancing of Debt Incurred pursuant to an agreement referred to in the preceding clauses clause (i) or (ii) above, in clause (vi), (vii) or (x) below or this clause (iii); provided, however, provided that the encumbrances and restrictions restriction contained in any such agreement are amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially less favorable to more restrictive (as determined in good faith by the LendersIssuer’s Board of Directors), taken as a whole, than the original encumbrances and restrictions of the same type contained in such the agreements or instruments referred to in clauses (i), (ii), (vi), (vii) or (x) or this clause (iii), as applicable;
(iv) resulting from the Incurrence of any Permitted Debt as defined in Section 4.04, provided that the restriction is no less favorable to the Holders of Notes in any material respect (as determined in good faith by the Issuer’s Board of Directors);
(iv) in than the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets restrictions of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) same type contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsthis Indenture;
(v) any restriction with respect to a Restricted Subsidiary (existing by reason of applicable law, rule, regulation or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of 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 dispositionorder;
(vi) restrictions created in connection with a Qualified Receivables Transaction thatrespect to clause (c) above only, in relating to Debt that is permitted to be Incurred and secured without also securing the good faith determination Notes pursuant to Section 4.04 and Section 4.06 that limit the right of the Board debtor to dispose of Directors, are necessary to effect such Qualified Receivables Transaction; provided the Property securing that such restrictions apply only to such Receivables EntityDebt;
(vii) encumbering Property at the time the Property was acquired by the Issuer or any Restricted Subsidiary, so long as the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of the acquisition;
(viii) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in leases, subleases or licenses and other agreements (including, without limitation, intellectual property licenses entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business) that restrict assignment of the agreements or rights thereunder;
(viiiix) any encumbrance or restriction pursuant to which are customary restrictions contained in asset sale agreements limiting the transfer of Property pending the closing of the sale;
(x) other Indebtedness or Preferred Stock existing pursuant to any Debt Incurred by a Foreign Subsidiary, which restrictions are customary for a financing of a Restricted Subsidiary; provided such type, and which are otherwise permitted under this Indenture, provided, however, that the Issuer’s Board of Directors determines in good faith that such encumbrances or restrictions will are not materially affect reasonably likely to impair the Borrower's Issuer’s ability to make anticipated principal and interest payments on the Loans Notes; or
(as determined in good faith xi) existing by reason of this Indenture, the Board of Directors of Notes, and the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13Note Guarantees;
(ixxii) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(xxiii) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xiixiv) customary provisions in operating the case of the provision described in clause (c) of the first paragraph of this covenant; arising or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only agreed to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary thereof in any manner material to the Issuer or any Restricted Subsidiary thereof;
(xivxv) any restriction created by operation contained in Hedging Obligations; and
(xvi) constituting customary restrictions with respect to a Securitization Subsidiary, pursuant to the terms of applicable lawa Permitted Receivables Financing.
Appears in 1 contract
Sources: Indenture (Energizer Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, 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:
(ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations obligation owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of 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),Company;
(bii) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Company; or
(ciii) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above)Company; except:
(ia) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this the Senior Subordinated Notes Indenture and the Credit Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iib) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred or Preferred Stock issued and outstanding by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company and outstanding on such date (other than Capital Indebtedness Incurred or Preferred Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Borrower) and outstanding on such dateCompany);
(iiic) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement evidencing Indebtedness Incurred without violation of the Indenture or effecting a refinancing, refunding or replacement refinancing of Indebtedness Incurred issued pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.an
Appears in 1 contract
Sources: Indenture (Ero Marketing Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will Issuer shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or 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 or pay any Indebtedness or other obligations owed to the Borrower Issuer or any other Restricted Subsidiary (it being understood that the priority of 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)Subsidiary,
(b2) pay any Debt or other obligation owed to the Issuer or any other Restricted Subsidiary,
(3) make any loans or advances to the Borrower Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Subsidiary, or
(c4) transfer any of its property or assets Property to the Borrower Issuer or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or Subsidiary.
(b) above); exceptThe foregoing limitations will not apply:
(i1) any encumbrance or restriction with respect to Sections 4.13(a)(1), (2), (3) and (4), to restrictions which are:
(A) pursuant to an agreement in effect at or entered into on the Effective Date, including pursuant Issue Date (as such restrictions may be amended from time to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or time; provided that any such amendment is not materially more restrictive as to such Restricted Subsidiary);
(B) of the type imposed by the Prior European Facility Notes or this indenture, or by indentures governing other Debt the Issuer Incurs (Cand, if such Debt is Guaranteed, by the guarantors of such Debt) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to ranking on a parity with the permissions of Section 6.13; Notes, provided that the encumbrances and restrictions contained in any imposed by such agreement or document that are permitted by this subclause (C) indentures are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facilitythis Indenture;
(iiC) any encumbrance or restriction imposed by a Credit Facility with respect to Debt permitted to be Incurred on or subsequent to the date hereof pursuant to Section 4.09(b)(1);
(D) relating to Debt of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to existing at the date on which such Restricted Subsidiary was acquired by the Borrower or time it became a Restricted Subsidiary (other than Capital Stock issued if such restriction was not created in connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on Issuer or a Restricted Subsidiary (as such daterestrictions may be amended from time to time in a manner not materially more restrictive as to such Restricted Subsidiary);
(iiiE) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement resulting from the Refinancing of Indebtedness Incurred Debt outstanding pursuant to an agreement referred to in the preceding clauses Section 4.13(b)(1)(A), (iB) or (iiD) or this clause (iii) or contained above; provided such restriction is no less favorable in any amendment, restatement, modification, renewal, supplement, rewriting, replacement material respect to the Holders of the Notes than those under the agreement evidencing the Debt so Refinanced when taken as a whole;
(F) restrictions on cash or refinancing of an agreement referred to other deposits or net worth imposed by leases or other agreements entered into in the preceding clauses ordinary course of business;
(iG) any encumbrances or restrictions required by any foreign or U.S. governmental, local or regulatory authority having jurisdiction over the Issuer or any Restricted Subsidiary or any of their businesses in connection with any development grant made or other assistance provided to the Issuer or any Restricted Subsidiary by such governmental authority;
(iiH) customary provisions in joint venture or this clause (iii)similar agreements or other arrangements with minority investors in Restricted Subsidiaries and cus- tomary provisions in Debt incurred by Restricted Subsidiaries organized outside the United States; provided, however, that such encumbrance or restriction is applicable only to such Restricted Subsidiary; and provided, further, that the encumbrances and Issuer determines that any such encumbrance or restriction will not materially affect the ability of the Issuer to make any anticipated payments of principal or interest on the Notes;
(I) customary restrictions contained in asset sale, stock sale, merger and other similar agreements limiting the transfer, disposition or distribution of such Property pending the closing of such sale, including any restriction imposed with respect to such Restricted Subsidiary pursuant to an agreement are not materially less favorable to dispose of all or substantially all the Lenders, taken as a whole, than the original encumbrances and restrictions contained in Capital Stock or assets of such agreements (as determined in good faith by the Board of Directors)Restricted Subsidiary;
(ivJ) customary restrictions imposed on the transfer of copyrighted or patented materials or other intellectual property and customary provisions in agreements that restrict the case assignment of clause such agreements or any rights thereunder or in leases governing leasehold interests;
(cK) any agreement for the sale or other disposition of this a Restricted Subsidiary that restricts distributions of assets (including Capital Stock) by that Restricted Subsidiary pending its sale or other disposition;
(L) restrictions on Debt Incurred by Non-U.S. Subsidiaries; provided that such restrictions are then customary for Debt of such type Incurred in such jurisdiction; or
(M) restrictions resulting from any U.S. or foreign law, rule, regulation or order applicable to the Issuer or any Restricted Subsidiary.
(2) with respect to Section 6.034.13(a)(4) only, any encumbrance or restriction to restrictions:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset relating to Debt that is subject permitted to a lease, license or similar contract, be Incurred and secured without also securing the Notes pursuant to the covenant described under Section 4.11 that limit the right of the debtor to dispose of the Property securing such Debt;
(B) encumbering Property at the time such Property was acquired by the Issuer or any Restricted Subsidiary, so long as such restrictions relate solely to the Property so acquired and were not created in connection with or in anticipation of such acquisition;
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder;
(D) imposed by virtue of any transfer of, agreement to transfer, option or right with respect to, to or Lien on any property or assets Property of the Borrower Issuer or any the relevant Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;Indenture; or
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assetsE) imposed pursuant to an agreement entered into for the sale under any Purchase Money Debt or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into Lease Obligation in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable respect only to the assets that are Property the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawthereof.
Appears in 1 contract
Sources: Indenture (Pharma Services Intermediate Holding Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Parent and Issuer shall not, and will shall not permit any of their respective 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 Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to Parent, Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Parent, Issuer or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsSubsidiary, 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),
(b) make any loans or advances to the Borrower Parent or any other Restricted Subsidiary (it being understood that the subordination of loans Issuer or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower Parent or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Issuer, except:
(i) any encumbrance or restriction (A) pursuant to this Indenture hereto or pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant and listed on Schedule B to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit FacilityIndenture;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Borrower Parent or a Restricted Subsidiary Issuer (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerParent or Issuer) and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.05 or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.05 or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially no less favorable to the Lenders, taken as a whole, Securityholders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors)predecessor agreements;
(iv) any such encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(v) in the case of clause (c) of this Section 6.03above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary permitted under this Indenture to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;mortgages; and
(vvi) 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;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (Warner Chilcott PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Guarantor shall not, and will shall not permit any Restricted Subsidiary other than the Company 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:
other than the Company; (a) to pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any other another Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsSubsidiary, 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),
(b) to make any loans or advances to the Borrower Company or any other another Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) to transfer any of its property or assets to the Borrower Company or any other another Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Subsidiary, except:
: (i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i) or (ii) of this covenant or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.06 or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially no less favorable to the Lenders, taken as a whole, Noteholders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors);
agreements; (iv) any such encumbrance or restriction consisting of customary nonassignment provisions related to intellectual property and in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder; (v) in the case of clause (c) of this Section 6.03above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary other than the 39 47 Company to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and mortgages; (D) ordinary course provisions restricting the assignability of contracts;
(vvi) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) other than the Company imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
and (vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to an agreement relating to Indebtedness permitted by clause (xiii) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans paragraph (as determined in good faith by the Board of Directors of the Borrowerb) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law4.07.
Appears in 1 contract
Sources: Indenture (Scotsman Industries Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or 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 Debt or other obligations obligation owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of 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),Company;
(b2) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Company; or
(c3) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above)Company; except:
(iA) any encumbrance or restriction (A) pursuant to an the Credit Agreement or any other agreement in effect at or entered into on the Effective Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility Issue Date or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions issuance of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit FacilityNotes;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Debt Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Debt Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Debt Incurred pursuant to an agreement referred to in the preceding clauses clause (iA) or (iiB) or this clause (iii) above or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (iA) or (iiB) or this clause (iii)above; provided, however, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment are not materially no less favorable to the Lenders, taken as a whole, Holders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements agreements,
(as determined D) any such encumbrance or restriction consisting of customary non-assignment provisions in good faith by leases governing leasehold interests to the Board extent such provisions restrict the transfer of Directors)the lease or other customary non-assignment provisions in contracts (other than contracts that constitute Debt) entered into the ordinary course of business to the extent such provisions restrict the transfer of the assets subject to such contracts;
(ivE) in the case of clause (c3) of this Section 6.03above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness Debt of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsmortgages;
(vF) encumbrances or restrictions imposed by operation of applicable law; and
(G) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the 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;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (Sterling Chemical Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability legal right of any Restricted Subsidiary to:
(a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness or other obligations owed obligation owed, to the Borrower Company or any other Restricted Subsidiary (it being understood that the priority of 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),Subsidiary;
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Subsidiary; or
(c) transfer any of its property or assets Property to the Borrower Company or any other Restricted Subsidiary Subsidiary. Such limitation will not apply:
(it being understood that such transfers shall not include any type of transfer described in clause 1) with respect to clauses (a) or ), (b) aboveand (c); except, to encumbrances and restrictions:
(iA) in agreements and instruments (including any Bank Credit Facilities) as in effect on the Issue Date,
(B) relating to Indebtedness of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such encumbrance or restriction (A) pursuant to an agreement was not created in effect at or entered into on the Effective Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock anticipation of or Indebtedness Incurred by such Restricted Subsidiary prior to in connection with the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;Subsidiary, or
(iiiC) any that result from the renewal, refinancing, extension or amendment of an agreement that is the subject of clause (c)(1)(A) or (B) above or clause (c)(2)(A) or (B) below, provided that such encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are is not materially less favorable to the Lenders, taken as a whole, Holders of 7⅞% Notes than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance those under or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary pursuant to the extent such encumbrance agreement so renewed, refinanced, extended or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction thatamended, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the BorrowerCompany and,
(2) or with respect to clause (yc) other Indebtedness or Preferred Stock of a Subsidiary Guarantoronly, in each case to:
(A) restrictions pursuant to Liens permitted to be Incurred pursuant to and secured without also securing the provisions of 7⅞% Notes under Section 6.13;
(ix) customary provisions in joint venture agreements 4.10 and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in that limit the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions right of the type described in clause (c) above on debtor to dispose of the property Property subject to such lease, license, contract or other similar agreement;Lien,
(xiB) restrictions on cash any encumbrance or other deposits restriction applicable to Property at the time it is acquired by the Company or net worth imposed by customers under contracts entered into a Restricted Subsidiary, so long as such encumbrance or restriction relates solely to the Property so acquired and was not created in the ordinary course anticipation of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;acquisition,
(xiiiC) customary provisions restricting subletting or assignment of any agreement entered into leases and customary provisions in the ordinary course other agreements that restrict assignment of business; such agreements or rights thereunder, and;
(xivD) any restriction created by operation customary restrictions contained in asset sale agreements limiting the transfer of applicable lawsuch assets pending the closing of such sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiary 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 Borrower or any other Restricted Subsidiary Company, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above)Company; except:
(ia) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this the Credit Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or ; (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iib) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred issued by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company and outstanding on such date (other than Capital Stock Indebtedness issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction 53 45 or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Borrower) and outstanding on such date;
Company); (iiic) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement evidencing Indebtedness Incurred without violation of the Indenture or effecting a refinancing, refunding or replacement refinancing of Indebtedness Incurred issued pursuant to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any of such agreement, refinancing agreement are not materially less favorable to the Lendersor amendment, taken as a whole, than are no less favorable to the original encumbrances and restrictions contained Holders in such agreements (any material respect, as determined in good faith by the senior management of the Company or Board of Directors);
Directors of the Company, than encumbrances and restrictions with respect to such Restricted Subsidiary contained in agreements in effect at, or entered into on, the Issue Date; (ivd) in the case of clause (ciii) of this Section 6.034.5, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contractproperty or asset, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower Company or any Restricted Subsidiary not otherwise prohibited by this Agreementthe Indenture, (C) 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 that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any of its Subsidiaries in any manner material to the Company or any such Restricted Subsidiary; (e) in the case of clause (iii) of this Section 4.5, restrictions contained in security agreements agreements, mortgages or similar documents securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and agreements; (D) ordinary course provisions restricting the assignability of contracts;
(vf) any restriction with respect to such 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 (vig) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith arising or existing by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation reason of applicable law.
Appears in 1 contract
Sources: Indenture (Campfire Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower (a) Each of Superior Energy and the Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock to Superior Energy, the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary Company, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(i1) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by Credit Facility and the Notes and this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit FacilityIndenture;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by Superior Energy or the Borrower or a Restricted Subsidiary Company, as the case may be (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) Company), and outstanding on such date;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i1) or (ii2) of this Section 4.08 or this clause (iii3) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i1) or (ii2) of this Section 4.08 or this clause (iii3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially less favorable to the Lenders, taken as a whole, no more restrictive than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors)predecessor agreements;
(iv4) any such encumbrance or restriction consisting of customary non-assignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(5) in the case of clause (ciii) of this Section 6.034.08(a) hereof, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness of Superior Energy, the Company or a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsmortgages;
(v6) any restriction with respect to a Restricted Subsidiary (provisions limiting the disposition or any distribution of its assets or property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements, limited liability agreements, joint operating agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those such agreements;
(xiii7) customary provisions restricting assignment of any agreement restrictions imposed by customers on cash or other amounts deposited by them pursuant to contracts entered into in the ordinary course of business; and;
(xiv8) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (iii) of Section 4.08(a) hereof;
(9) restrictions on the transfer of property or assets required by any regulatory authority having jurisdiction over Superior Energy, the Company or such Restricted Subsidiary;
(10) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of Superior Energy, the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to Superior Energy, the Company or any Restricted Subsidiary; and
(11) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens.
(b) Superior Energy will not create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on its ability to (i) make capital contributions or other Investments in the Company or any Restricted Subsidiary or pay any Indebtedness owed to the Company or any Restricted Subsidiary, (ii) make any loans or advances to the Company or any Restricted Subsidiary or (iii) transfer any of its property or assets to the Company or any Restricted Subsidiary, except:
(1) any encumbrance or restriction created by operation pursuant to any Credit Facilities and any agreement in effect at or entered into on the Issue Date; and
(2) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of applicable lawIndebtedness Incurred pursuant to an agreement referred to in the immediately preceding clause (1) of this Section 4.08(b) or this clause (2) or contained in any amendment to an agreement referred to in the immediately preceding clause (1) of this Section 4.08(b) of this clause (2); provided, however, that the encumbrances and restrictions with respect to Superior Energy contained in any such refinancing agreement or amendment are no more restrictive in any material respect than the encumbrances and restrictions with respect to Superior Energy contained in such predecessor agreements.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Parent Guarantor shall not, and will shall not permit any Restricted Subsidiary that is not an Issuer or a Subsidiary Guarantor 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:
(a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Borrower Parent Guarantor or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends, dividends or liquidating distributions prior to the dividends or liquidating distributions being paid on Common Stock common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b) make any loans or advances to the Borrower Parent Guarantor or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower any Issuer or any Restricted Subsidiary to other Indebtedness Debt Incurred by the Borrower Parent Guarantor or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) ), or
(c) sell, lease or transfer any of its property properties or assets to the Borrower Parent Guarantor or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); except. The foregoing limitations shall not apply to restrictions:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this the Credit Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or ;
(B) relating to Debt of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to existing at the date on which such Restricted Subsidiary was acquired by the Borrower or time it became a Restricted Subsidiary (other than Capital Stock issued if such restriction was not created in connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such dateParent Guarantor;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in that result from any amendment, restatement, modification, renewal, supplement, rewriting, extension or replacement or refinancing of an agreement referred to in the preceding clauses (i) or A), (iiB), (F), (G), (J) or this clause (iiiC) in this second paragraph of Section 4.08 (including, in each case, in connection with the Refinancing of Debt Incurred thereunder); provided, however, provided that the encumbrances and restrictions restriction contained in any such agreement are amendment, restatement, modification, renewal, supplement, extension, replacement or Refinancing is not materially less favorable to more restrictive (as determined in good faith by the LendersParent Guarantor), taken as a whole, than the original encumbrances and restrictions of the same type contained in the agreements or instruments referred to in clauses (A), (B), (F), (G) or (J) or this clause (C) in this second paragraph of Section 4.08, as applicable;
(D) resulting from the Incurrence of any Permitted Debt as defined in the second paragraph of Section 4.04; provided that if the obligor of such agreements Debt is an Issuer or a Subsidiary Guarantor, the restriction is no less favorable to the Holders in any material respect (as determined in good faith by the Board Parent Guarantor) than the restrictions of Directors)the same type contained in this Indenture;
(ivE) in the case existing by reason of applicable law, rule, regulation or order;
(F) with respect to clause (c) set forth in the first paragraph of this Section 6.034.08 only, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset relating to Debt that is subject permitted to a lease, license or similar contract, (B) by virtue be Incurred and secured without also securing the Notes pursuant to Section 4.04 and Section 4.06 that limit the right of any transfer of, agreement the debtor to transfer, option or right with respect to, any property dispose of the properties or assets of securing that Debt;
(G) encumbering properties or assets at the Borrower time the properties and assets were acquired by the Parent Guarantor or any Restricted Subsidiary not otherwise prohibited by this AgreementSubsidiary, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary so long as the restriction relates solely to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner properties and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions so acquired and was not created in connection with a Qualified Receivables Transaction that, or in the good faith determination anticipation of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entityacquisition;
(viiH) any resulting from customary provisions restricting subletting or assignment of leases or customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantorincluding, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venturewithout limitation, in each case intellectual property licenses entered into in the ordinary course of business) that restrict assignment of the agreements or rights thereunder;
(xI) which are customary restrictions contained in asset sale agreements limiting the transfer of property or assets pending the closing of the sale;
(J) existing by reason of this Indenture, the Notes, the Note Guarantees, the Exchange Notes and the related Note Guarantees;
(K) any Debt or contractual requirements Incurred with respect to a Qualified Securitization Transaction relating exclusively to a Securitization Subsidiary that, as determined in good faith by the Parent Guarantor or the relevant Restricted Subsidiary, as applicable, are necessary to effect such Qualified Securitization Transaction; and
(L) which are customary provisions contained limiting the disposition or distribution of assets or property in leasesjoint venture agreements, licensesasset sale agreements, contracts sale-leaseback agreements, stock sale agreements and other similar agreements entered into in with the ordinary course of business to the extent such obligations impose restrictions approval of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers Parent Guarantor’s Board of Directors and otherwise permitted under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transactionthis Indenture, which limitation is applicable only to the assets that are the subject of those such agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will notNeither the Company nor the Issuer shall, and will not nor shall the Company permit any other 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) 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 Borrower Company or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsIssuer, 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),
(b) to make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans Issuer or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) to transfer any of its property or assets to the Borrower Company or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); the Issuer, except:
: (i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement 29 Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i) or (ii) of this covenant or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i) or (ii) of this covenant or this clause (iii); providedPROVIDED, howeverHOWEVER, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially no less favorable to the Lenders, taken as a whole, Noteholders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors);
agreements; (iv) any such encumbrance or restriction consisting of customary non-assignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder; (v) in the case of clause (c) of this Section 6.03above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or mortgages; (vi) any restriction with respect to the Equity Interests in Guaranteed Notes, any defeasance trust or the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner Debt Service Reserve Account; and (D) ordinary course provisions restricting the assignability of contracts;
(vvii) 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;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (Pt Polytama Propindo)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary Company, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(i1) any encumbrance or restriction pursuant to (A) pursuant to an agreement in effect at or entered into on the Effective Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility Closing Date or (B) an agreement entered into in connection with the Incurrence of Indebtedness permitted under clause (b)(i) or (b)(vi) of Section 4.03, provided that the chief financial officer of the type imposed by the Prior European Facility or (C) pursuant to Company has determined in good faith that any agreement or document governing or evidencing any Indebtedness restriction incurred pursuant to the permissions this clause (B) is customary for similar Incurrences of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit FacilityIndebtedness;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the BorrowerCompany) and outstanding on such date;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i1) or (ii2) of this Section 4.05 or this clause (iii3) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i1) or (ii2) of this Section 4.05 or this clause (iii3); provided, however, that the encumbrances and restrictions contained in any such refinancing agreement or amendment are not materially no less favorable to the Lenders, taken as a whole, Securityholders than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors)predecessor agreements;
(iv4) in the case of clause (c) of this Section 6.03iii), any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;agreements; and
(v5) any restriction with respect to a Restricted Subsidiary (or Subsidiary, any of its property or assets) restriction imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (Splitrock Services Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsCompany, 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),
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(i1) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or 52 44 was acquired by the BorrowerCompany) and outstanding on such date;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i1) or (ii2) of this Section 4.05 or this clause (iii3) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i1) or (ii2) of this Section 4.05 or this clause (iii3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially less favorable to the Lenders, taken as a whole, no more restrictive in any material respect than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors)agreements;
(iv4) any such encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(5) in the case of clause (c) of this Section 6.03above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsmortgages;
(v6) 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
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv7) any restriction created by operation in any agreement that is not more restrictive than the restrictions under the terms of applicable lawthe Credit Agreement as in effect on the Issue Date.
Appears in 1 contract
Sources: Indenture (Fairchild Semiconductor International Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will (a) Except for the restrictions set forth herein or imposed by law, the Company shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability right of any Restricted Subsidiary to:
(ai) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Borrower Company or any other Restricted Subsidiary (it being understood that the priority of 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)Subsidiary,
(bii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Subsidiary, or
(ciii) transfer any of its property or assets Property to the Borrower Company or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or Subsidiary.
(b) above); exceptThe foregoing limitations shall not apply:
(i) any encumbrance or restriction with respect to clauses (a)(i), (ii) and (iii), to restrictions:
(A) in effect on the Issue Date (including, without limitation, restrictions pursuant to an agreement in effect at or entered into on the Effective DateNotes, including pursuant to this Third Supplemental Indenture, a Receivables Program and the Credit Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or ),
(B) of the type imposed by the Prior European Facility or relating to Acquired Indebtedness, or
(C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to that result from the permissions Refinancing of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Debt Incurred pursuant to an agreement referred to in the preceding clauses clause (ii)(A) or (iiB) above or this in clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (iii)(A) or (iiB) or this clause (iii); providedbelow, however, provided that the encumbrances and such restrictions contained in any such agreement are not materially less favorable to the Lendersmore restrictive, taken as a whole, with respect to such dividend and other payment restrictions than the original encumbrances and restrictions those contained in such agreements the agreement evidencing the Debt so refinanced (as determined in good faith by the Board of DirectorsDirectors in its good faith judgment);, and
(ivii) in the case of with respect to clause (ca)(iii) of this Section 6.03only, any encumbrance or restriction to restrictions:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset relating to Debt that is subject permitted to a lease, license or similar contract, be Incurred and secured without also securing the Notes pursuant to the covenants described under Sections 4.09 and 4.11 that limit the right of the debtor to dispose of the Property securing such Debt,
(B) encumbering Property at the time such Property was acquired by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower Company or any Restricted Subsidiary Subsidiary, so long as such restrictions relate solely to the Property so acquired and were not otherwise prohibited by this Agreement, created in connection with or in anticipation of such acquisition,
(C) contained resulting from customary provisions restricting the subletting or assignment of leases or customary provisions in security other agreements securing Indebtedness that restrict the assignment of a Restricted Subsidiary to the extent such encumbrance agreements or rights or other non-cash assets thereunder, including, without limitation, customary restrictions restrict imposed on the transfer of the property subject to such security agreements copyrighted or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and patented materials,
(D) ordinary course provisions restricting customary restrictions contained in asset sale agreements limiting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets transfer of such Restricted Subsidiary (or the property or assets that are subject to such restriction) Property pending the closing of such sale or disposition;sale,
(viE) restrictions created contained in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary Purchase Money Debt for Property acquired in the ordinary course of business;,
(viiiF) included in customary provisions and agreements with respect to Permitted Joint Ventures,
(G) contained in any Debt or any agreement pursuant to which such Debt was issued if (i) the encumbrance or restriction pursuant to applies only upon a payment default or financial covenant default or event of default contained in such Debt or agreement and (xii) other Indebtedness the encumbrance or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will restriction is not materially affect the Borrower's ability more disadvantageous to make anticipated principal and interest payments on the Loans Holders than is customary in comparable financings (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantorin its good faith judgment), in each case permitted to be Incurred pursuant to the provisions of Section 6.13;or
(ixH) resulting from the application of reasonable and customary provisions borrowing base, net worth and similar covenants set forth in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into by the Company or a Restricted Subsidiary in the ordinary course respect of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawPermitted Debt.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(a) to pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any other a Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsSubsidiary, 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),
(b) to make any loans or advances to the Borrower Company or any other a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) to transfer any of its property or assets to the Borrower Company or any other a Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Subsidiary, except:
: (i) any encumbrance or restriction (A) in the Priority Lien Credit Agreement or Note Documents on the Issue Date or pursuant to an any other agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.06 or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.06 or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially no less favorable to the Lenders, taken as a whole, Securityholders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors);
agreements; (iv) any such encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder; (v) in the case of clause (c) of this Section 6.03above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner mortgages; and (D) ordinary course provisions restricting the assignability of contracts;
(vvi) 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;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (Denbury Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any other of its Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsSubsidiaries, 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),
(b) make any loans or advances to the Borrower Company or any other of its Restricted Subsidiary (it being understood that the subordination of loans Subsidiaries or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower Company or any other of its Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Subsidiaries, except:
(i) any encumbrance or restriction (A) pursuant to applicable law, regulation, order or an agreement in effect at or entered into on the Effective Closing Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the BorrowerCompany) and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (c) (i) or (c) (ii) of this Section 4.05 or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (ic)(i) or (iic)(ii) of this Section 4.05 or this clause (iii); provided, however, that the encumbrances and restrictions contained in any agreement or amendment relating to such agreement Refinancing are not materially no less favorable to the Lenders, taken as a whole, Holders than the original encumbrances and restrictions contained in such the agreements (as determined in good faith by relating to the Board of Directors)Indebtedness so Refinanced;
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, contract or (B2) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) that is contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsagreements;
(v) any restriction with respect to a Restricted Subsidiary (or Subsidiary, any of its property or assets) restriction imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) contracts for the sale of assets containing customary restrictions created in connection with respect to a Qualified Receivables Transaction that, in Subsidiary pursuant to an agreement that has been entered into for the good faith determination sale or disposition of all or substantially all of the Board Capital Stock or assets of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables EntitySubsidiary;
(vii) any agreements for the sale of assets containing customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of businessrestrictions with respect to such assets;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant relating to the provisions common stock of Section 6.13Unrestricted Subsidiaries or Persons other than Subsidiaries;
(ix) customary encumbrances or restrictions existing under or by reason of provisions with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;business; and
(xix) encumbrances or restrictions existing under or 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;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (Reptron Electronics Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of 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),
(b) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); except:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are not materially no less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors)agreements;
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Non-Guarantor Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ’s ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;; and
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, create directly or indirectly, create, assume 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 legal right of any Restricted Subsidiary to:
(other than a Foreign Subsidiary) to (a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock or Redeemable Stock held by the Company or a Restricted Subsidiary, (b) pay any Indebtedness or other obligations obligation owed to the Borrower Company or any other Restricted Subsidiary Subsidiary, (it being understood that the priority of 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),
(bc) make any loans or advances to the Borrower Company or any other Restricted Subsidiary or (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(cd) transfer any of its property or assets to the Borrower Company or any other Restricted Subsidiary. Such limitation will not apply (1) with respect to clauses (c) and (d) only, to encumbrances and restrictions (i) in existence under or by reason of any agreements in effect on the Issue Date, (ii) required by Bank Credit Facilities that are not more restrictive than those in effect under the Bank Credit Facility on the Issue Date, (iii) existing at such Restricted Subsidiary at the time it became a Restricted Subsidiary if (it being understood that A) such transfers shall encumbrance or restriction was not include any type created in anticipation of transfer described in such acquisition and (B) immediately following such acquisition, on a pro forma basis, the Company could incur at least $1.00 of additional Indebtedness pursuant to clause (a) of Section 1008 or (biv) which result from the renewal, refinancing, extension or amendment of an agreement referred to in the immediately preceding clauses (i), (ii) and (iii) above); except:
, provided, such replacement or encumbrance or restriction is no more restrictive to the Company or Restricted Subsidiary and is not materially less favorable to the Holders of Securities than those under or pursuant to the agreement evidencing the Indebtedness so extended, renewed, refinanced or replaced, and (2) with respect to clause (d) only, to (i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Datesale, including pursuant to this Agreementtransfer or other disposition of assets or Property securing Indebtedness as a result of a Lien permitted under Section 1009, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction in connection with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock acquisition of Property, so long as such encumbrance or Indebtedness Incurred by such Restricted Subsidiary prior restriction relates solely to the date on which Property so acquired and was not created in connection with or in anticipation of such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration inacquisition, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(iii) customary provisions restricting subletting or assignment of leases and customary provisions in other agreements that restrict assignment of such agreements or rights thereunder, (iv) any encumbrance or restriction with respect due to a Restricted Subsidiary pursuant to an agreement effecting a refinancingapplicable law, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (iv) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and customary restrictions contained in any such agreement are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such asset sale agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict limiting the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of 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 (vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into purchase money obligations for Property acquired in the ordinary course of business with respect to the extent transfers of such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawProperty.
Appears in 1 contract
Sources: Indenture (Vintage Petroleum Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsCompany, 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),
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(i) with respect to clauses (a), (b) and (c):
(A) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date (including the Credit Agreement in effect on the Issue Date, including pursuant to this AgreementIndenture, the Public Bond Documents, Securities and the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility);
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (iSections 4.05(i)(A) or (iiB) or this clause (iiiC) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses (iSection 4.05(i)(A) or (iiB) or this clause (iiiC); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially no less favorable to the Lenders, taken Company (as a whole, reasonably determined by the Company in good faith) than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors)predecessor agreements;
(ivD) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, to (Ci) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary or (ii) a business unit, division, product line or the property line of business or other assets that are subject to such restriction) in a transaction permitted under Section 4.06, in each case pending the closing of such sale or disposition;
(viE) restrictions created in connection with a Qualified Receivables Transaction thatany encumbrance or restriction pursuant to applicable law, in the good faith determination of the Board of Directorsrule, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entityregulation or order;
(viiF) provisions contained in any customary provisions approval, license or permit with a regulatory authority, in leases, subleases or licenses and other agreements each case entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viiiG) restrictions on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into the ordinary course of business, including such restrictions imposed by customers or insurance, surety or bonding companies;
(H) any encumbrance or restriction pursuant with respect to (x) other Indebtedness a Foreign Subsidiary entered into the ordinary course of business or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions terms of Section 6.13Indebtedness that was Incurred by such Foreign Subsidiary in compliance with the terms of this Indenture;
(ixI) provisions contained in any license, permit or other accreditation with a regulatory authority entered into the ordinary course of business;
(J) provisions in agreements or instruments which prohibits the payment or making of dividends or other distributions other than on a pro rata basis;
(K) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered in the ordinary course of business (including in the case of NCR Manaus, restrictions and conditions set forth in the Brazil Transaction Documents); and
(L) any encumbrance or restriction contained in the terms of any agreement under which Indebtedness is permitted to be Incurred after the Issue Date pursuant to Section 4.03 if (x) either (i) the encumbrance or restriction applies only in the event of and during the continuance of a payment default or a default with respect to a financial covenant contained in such joint ventureIndebtedness or agreement or (ii) the Company reasonably determines in good faith at the time any such Indebtedness is Incurred (and at the time of any modification of the terms of any such encumbrance or restriction) that any such encumbrance or restriction shall not materially affect the Company’s ability to make principal or interest payments on the Securities and any other Indebtedness that is an obligation of the Company and (y) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings or agreements (as reasonably determined by the Company in good faith);
(ii) with respect to clause (c) only:
(A) any encumbrance or restriction consisting of customary provisions in leases and other agreements to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(B) any encumbrance or restriction contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages;
(C) any encumbrance or restriction contained in any Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.03 and 4.13 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(D) any encumbrance or restriction contained in any agreement relating to Purchase Money Indebtedness permitted by Section 4.03 if such restrictions or conditions apply only to the assets securing such Indebtedness; and
(E) any encumbrance or restriction consisting of customary non-assignment provisions in a lease, license or similar contract, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (NCR Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary Company, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(A) with respect to clause (i), (ii) and (iii): (1) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or ; (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
; (iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i1) or (ii2) of clause (A) of this Section 4.14 or this clause (iii3) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i1) or (ii2) of clause (A) of this Section 4.14 or this clause (iii3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially no less favorable to the Lenders, taken as a whole, Noteholders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors);predecessor agreements; and
(ivB) in the case of with respect to clause (ciii) of this Section 6.03, only: (1) any such encumbrance or restriction (A) that restricts consisting of customary nonassignment provisions in a customary manner leases governing leasehold interests to the subletting, assignment or extent such provisions restrict the transfer of any the lease or the property or asset that is subject to a lease, license or similar contract, leased thereunder; (B2) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner mortgages; and (D) ordinary course provisions restricting the assignability of contracts;
(v3) 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;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (Usx Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsCompany, 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),
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(i1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such datedate which encumbrance or restriction does not relate to any Person other than such Restricted Subsidiary;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (iA), (B) or (iiG) of clause (1) of this Section 4.12 or this clause (iiiC) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (iA) or (iiB) of clause (1) of this Section 4.12 or this clause (iiiC); provided, however, provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially less favorable in any material respect to the Lenders, taken as a whole, Holders of Notes than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements (as determined in good faith by the Board of DirectorsCompany in its reasonable judgment);
(ivD) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject with respect to a lease, license Securitization Subsidiary in connection with a Qualified Securitization Transaction; provided that such encumbrances and restrictions are customarily required by the institutional sponsor or arranger of such Qualified Securitization Transaction in similar contract, (B) by virtue types of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary documents relating to the extent such encumbrance purchase of similar receivables, other rights to payment or restrictions restrict inventory in connection with the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsfinancing thereof;
(vE) 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;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ixF) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to the securities, assets and revenues of such joint venture, in each case ; and
(G) encumbrances or restrictions incurred or entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of during any agreement entered into in the ordinary course of businessSuspension Period; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsCompany, 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),
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Indebtedness or Preferred Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Indebtedness or Preferred Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness or Preferred Stock Incurred pursuant to an agreement referred to in the preceding clauses clause (i) or (ii) of this covenant or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement amendment to or refinancing extension of an agreement referred to in the preceding clauses clause (i) or (ii) of this covenant or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially in the aggregate no less favorable to the Lenders, taken as a whole, Securityholders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors)predecessor agreements;
(iv) any such encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(v) in the case of clause (c) of this Section 6.03above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements (including mortgages, assignments of earnings, assignments of insurances and pledge agreements) securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsagreements;
(vvi) 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;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any such restriction applicable to a Restricted Subsidiary contained in the ordinary course agreements evidencing or relating to Purchase Money Indebtedness of businesssuch Restricted Subsidiary permitted by Section 4.03(b)(8);
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments customary limitations on the Loans (as determined in good faith by the Board distribution or disposition of Directors of the Borrower) assets or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions property in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and sale-leaseback agreements, stock sale agreements entered into in connection with such transactionand other similar agreements, which limitation is limitations are applicable only to the assets that are the subject of those such agreements;
(xiiiix) restrictions contained in, or in respect of, Hedging Obligations permitted to be Incurred by this Indenture; and
(x) in the case of clause (a) above, restrictions contained in security agreements (including mortgages, assignments of earnings, assignments of insurances and pledge agreements) securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements; provided that (i) such restrictions are not materially more disadvantageous to the Securityholders than is customary provisions restricting assignment in comparable financings or agreements (as determined by the Board of Directors in good faith) and (ii) the Board of Directors determines at the time any such Indebtedness is Incurred (and at the time of any agreement entered into in modification of the ordinary course terms of business; and;
(xivany such restrictions) that such restrictions will not materially affect the Company's ability to make principal or interest payments on the Securities and any restriction created by operation other Indebtedness that is an obligation of applicable lawthe Company.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsCompany, 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),
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(i1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Date, Issue Date (including pursuant to this Indenture and the Credit Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility);
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (iSection 4.05(1)(A) or (iiB) or this clause (iiiC) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses (iSection 4.05(1)(A) or (iiB) or this clause (iiiC); providedPROVIDED, howeverHOWEVER, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially no less favorable to the Lenders, taken as a whole, Securityholders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors)predecessor agreements;
(ivD) provisions with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements entered into in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsbusiness;
(vE) 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 Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) permitted by this Indenture pending the closing of such sale or disposition;
(viF) restrictions created in connection with a Qualified Receivables Transaction thatany restriction arising under applicable law, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entityregulation or order;
(viiG) any customary provisions agreement or instruction governing Capital Stock (other than Disqualified Stock) of any Person that is in leases, subleases or licenses and other agreements entered into effect on the date such Person is acquired by the Borrower Company or any a Restricted Subsidiary in the ordinary course of businessSubsidiary;
(viiiH) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xivI) any restriction created by operation in any agreement that is not more restrictive than the restrictions under the terms of applicable lawthe Credit Agreement as in effect on the Issue Date; and
(2) with respect to clause (c) only,
(A) any such encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder; and
(B) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements or mortgages.
Appears in 1 contract
Sources: Indenture (Monterey Carpets Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Issuer shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsIssuer, 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),
(b) make any loans or advances to the Borrower Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Issuer, except:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on May 17, 1999 and any amendments, modifications, restatements, renewals or supplements thereof so long as the Effective Date, including pursuant terms thereof are not materially less favorable to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) Holders of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained Notes than those in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facilityeffect on May 17, 1999;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Issuer (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerIssuer) and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i) or (ii) of this covenant or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i) or (ii) of this covenant or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially less favorable to the Lenders, taken as a whole, Holders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors)predecessor agreements;
(iv) any such encumbrance or restriction consisting of customary non-assignment provisions in licensing agreements or leases governing leasehold interests to the extent such provisions restrict the transfer of the license, lease or the property leased thereunder;
(v) in the case of clause (c) of this Section 6.03above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsmortgages;
(vvi) any such encumbrance or restriction consisting of any restriction on the sale or other disposition of assets or property securing Indebtedness as a result of a Permitted Lien on such assets or property;
(vii) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the 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;
(viviii) any encumbrance or restriction contained in security agreements or mortgages securing Indebtedness, or under any documents providing for Capital Lease Obligations, of a Restricted Subsidiary which are not prohibited by Clause 5.12 to the extent such encumbrances or restrictions created in connection with a Qualified Receivables Transaction that, in restrict the good faith determination assignment or transfer of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only property or assets subject to such Receivables Entitysecurity agreements or mortgages, or subject to such Capital Lease Obligations;
(viiix) any customary provisions in leases, subleases encumbrance or licenses and other agreements entered into restriction existing under or by the Borrower reason of applicable law or any Restricted Subsidiary in the ordinary course of businessregulations;
(viiix) any encumbrance or restriction contained in contracts for sales of assets otherwise permitted by this Note;
(xi) any encumbrance or restriction pursuant to purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (xc) other above in the property so acquired;
(xii) any encumbrance or restriction contained in any agreement pursuant to which Indebtedness is issued if (A) the encumbrance or Preferred Stock restriction either (1) applies only in the event of a Restricted Subsidiary; provided that such encumbrances payment default or restrictions will (2) is contained in one or more credit agreements and (B) the encumbrance or restriction is not materially affect more disadvantageous to the Borrower's ability to make anticipated principal and interest payments on holders of the Loans Notes than is customary in comparable financings (as determined in good faith by the Board of Directors of Issuer) based on market conditions in effect at the Borrower) time such encumbrance or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13restriction is created;
(ixxiii) any encumbrance or restriction, with respect to a Restricted Subsidiary that is not a Restricted Subsidiary on the Closing Date, in existence at the time such Person becomes a Restricted Subsidiary and not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary; or
(xiv) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Note Purchase Agreement (Alestra)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, 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 Borrower or any other Restricted Subsidiary Company, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause Company, except: (a) or (b) above); except:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or ; (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iib) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred issued by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company and outstanding on such date (other than Capital Stock issued or Indebtedness Incurred as consideration inin anticipation of, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Borrower) and outstanding on such date;
Company); (iiic) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement evidencing Indebtedness Incurred without violation of this Indenture or effecting a refinancing, refunding or replacement refinancing of Indebtedness Incurred issued pursuant to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any of such agreement, refinancing agreement are not materially less favorable to the Lendersor amendment, taken as a whole, than are no less favorable to the original encumbrances and restrictions contained holders of the Securities in such agreements (any material respect, as determined in good faith by the Board of Directors);
Directors of the Company, than encumbrances and restrictions with respect to such Restricted Subsidiary contained in agreements in effect at, or entered into on, the Issue Date; (ivd) in the case of clause (c) iii), of this Section 6.034.08, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contractproperty or asset, (B) by virtue of any transfer of, agreement to transfer, option option, or right with respect to, or Lien on, any property or assets of the Borrower Company or any Restricted Subsidiary not otherwise prohibited by this AgreementIndenture, (C) 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 that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any of its Subsidiaries in any manner material to the Company or any such Restricted Subsidiary; (e) in the case of clause (iii) above, restrictions contained in security agreements agreements, mortgages or similar documents securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests agreements; (f) in the owner case of such property clause (iii) of this Section 4.08 above, any instrument governing or in evidencing Indebtedness of a Person acquired by the Company or any Restricted Subsidiary of the Borrower Company at the time of such acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired; provided, however, that owns a direct such Indebtedness is not Incurred in connection with or indirect Equity Interest in contemplation of such owner and acquisition; (D) ordinary course provisions restricting the assignability of contracts;
(vg) any restriction with respect to such 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 of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
; and (vih) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith arising or existing by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation reason of applicable law.
Appears in 1 contract
Sources: Indenture (Source Media Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsSubsidiary, 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),
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower Company or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Subsidiary, except:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this the Credit Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.05 or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.05 or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially no less favorable to the Lenders, taken as a whole, Securityholders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors)predecessor agreements;
(iv) any such encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(v) in the case of clause (c) of this Section 6.03above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;mortgages; and
(vvi) 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;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (King Pharmaceuticals Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or 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 obligation owed to the Borrower or any other Restricted Subsidiary Company, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower Company or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Subsidiary, except:
(i1) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Date, Issue Date (including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL New Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility);
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower Company or a Restricted Subsidiary and outstanding on such date (other than Capital Stock issued or Indebtedness Incurred as consideration inin connection with, or to provide all or any portion of the funds or credit support utilized to consummatein contemplation of, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such dateCompany or a Restricted Subsidiary);
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i1) or (ii2) or of this clause (iii) Section or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i1) or (ii2) or of this clause (iii)Section; provided, however, that the encumbrances and restrictions contained in any such refinancing agreement or amendment are not materially less favorable to the Lenders, taken as a whole, Senior Noteholders than the original encumbrances and restrictions contained in any such agreements (agreement as determined in good faith by the Board of Directors)Company and evidenced by an Officers' Certificate;
(iv4) in the case of clause (c) of this Section 6.03iii), any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower Company or any Restricted Subsidiary not otherwise prohibited by this Agreement, the Indenture or (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsagreements;
(v5) 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;
(vi6) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination any encumbrance or restriction arising under or by reason of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entityapplicable law;
(vii7) any encumbrance or restriction contained in the Indenture;
(8) customary provisions in leasesjoint venture agreements relating solely to the securities, subleases assets and revenues of such joint venture or licenses other business venture;
(9) any encumbrance or restriction applicable to secured Indebtedness otherwise permitted to be Incurred under the Indenture that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(10) customary net worth provisions contained in leases and other agreements entered into by the Borrower or any a Restricted Subsidiary in the ordinary course of business;; and
(viii11) any encumbrance or restriction customary restrictions with respect to a Restricted Subsidiary pursuant to (x) an agreement that has been entered into for the sale or other Indebtedness disposition of all of the Capital Stock or Preferred Stock assets of a such Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (Friendly Ice Cream Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary Subsidiary, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower or any other Restricted Subsidiary or (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary, except any encumbrance or restriction:
(a) pursuant to an agreement or instrument as in effect at or entered into on the date hereof, including without limitation the ABL Facility and the Subordinated Notes Purchase Agreements;
(b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Stock of a Person, which Person is acquired by or merged or consolidated with or into the Borrower or any Restricted Subsidiary, or which agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (it being understood except to the extent that such transfers shall Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation) and not include applying to the Borrower or any type of transfer described the Restricted Subsidiaries (other than to any such Person or assets so acquired);
(c) pursuant to an agreement or instrument replacing or contained in any amendment, supplement or other modification to an agreement referred to in clause (a) or (b) above); except:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such replacement agreement or amendment taken as a whole are not materially less favorable to the Lenders, taken as a whole, Lenders than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors)original agreement;
(ivd) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, (Bii) 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, (Ciii) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict restricting the transfer of the property or assets subject thereto, (iv) pursuant to such security agreements or the Equity Interests in the owner customary provisions restricting dispositions of such property or Real Estate interests set forth in any Subsidiary reciprocal easement agreements of the Borrower or any Restricted Subsidiary, or (v) pursuant to purchase money Indebtedness that owns a direct impose encumbrances or indirect Equity Interest in such owner and (D) ordinary course provisions restricting restrictions on the assignability of contractsproperty or assets so acquired;
(ve) 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 Capital all or substantially all the 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;
(vif) restrictions created in connection with a Qualified Receivables Transaction thatby reason of any applicable law, in the good faith determination of the Board of Directorsrule, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) regulation or order, or required by any customary provisions in leases, subleases or licenses and other agreements entered into by regulatory authority having jurisdiction over the Borrower or any Restricted Subsidiary in the ordinary course or any of businesstheir businesses;
(viiig) any encumbrance or restriction pursuant to an agreement or instrument (xi) other relating to any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to Section 9.1, if the encumbrances and restrictions contained in any such agreement or Preferred Stock of instrument taken as a Restricted Subsidiary; provided that such encumbrances or restrictions will whole are not materially affect less favorable to the Borrower's ability to make anticipated principal Lenders than the encumbrances and interest payments on restrictions contained in the Loans agreements set forth in clause (a) above (as determined in good faith by the Board Borrower);
(h) restrictions and conditions on any Foreign Subsidiary by the terms of Directors any Indebtedness of the Borrower) or (y) other Indebtedness or Preferred Stock of a such Foreign Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13incurred hereunder;
(ixi) 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 (including stockholder agreements) relating applicable to joint ventures permitted under Section 9.5 and applicable solely to such joint venture, in each case entered into in the ordinary course of business;
(xk) customary provisions contained negative pledges and restrictions on Liens in leases, licenses, contracts favor of any holder of Indebtedness permitted under Section 9.1 but only if such negative pledge or restriction expressly permits Liens for the benefit of the Administrative Agent and/or the Collateral Agent and other similar agreements entered into in the ordinary course of business Lenders with respect to the extent credit facilities established hereunder and the Obligations under the Credit Documents on a senior basis and without a requirement that such obligations impose restrictions holders of the type described in clause (c) above such Indebtedness be secured by such Liens equally and ratably or on the property subject to such lease, license, contract or other similar agreementa junior basis;
(xil) restrictions on cash or cash, other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xiim) Secured Indebtedness otherwise permitted to be incurred under Sections 9.1(f) and (j) that limit the right of the obligor to dispose of the assets securing such Indebtedness; and
(n) customary provisions in operating or leases, subleases, licenses, sublicenses and other similar agreementscontracts restricting the assignment thereof, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement each case entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Credit Agreement (Univar Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Issuers shall not, and will shall not permit any of their 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:
(ai) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations obligation owed to the Borrower an Issuer or any other another Restricted Subsidiary (it being understood that the priority of 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),Subsidiary;
(bii) make any loans or advances to the Borrower an Issuer or any other another Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower an Issuer or any other another Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Subsidiary, except:
(ia) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iib) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary an Issuer and outstanding on such date (other than Capital Stock issued or Indebtedness Incurred as consideration inin anticipation of, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of an Issuer or was acquired by the Borrower) and outstanding on such datean Issuer);
(iiic) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement evidencing Indebtedness Incurred without violation of this Indenture or effecting a refinancing, refunding or replacement refinancing of Indebtedness Incurred issued pursuant to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any of such agreement, refinancing agreement are not materially less favorable to the Lendersor amendment, taken as a whole, than are no less favorable to the original encumbrances and restrictions contained holders of the Securities in such agreements (any material respect, as determined in good faith by the Board of Directors)Directors of the Issuers, than encumbrances and restrictions with respect to such Restricted Subsidiary contained in agreements in effect at, or entered into on, the Issue Date;
(ivd) in the case of clause (ciii) of this Section 6.034.08, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contractproperty or asset, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower an Issuer or any Restricted Subsidiary not otherwise prohibited by this AgreementIndenture, (C) 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 that does not, individually or in the aggregate, detract from the value of property or assets of an Issuer or any of its Restricted Subsidiaries in any manner material to an Issuer or any such Restricted Subsidiary;
(e) in the case of clause (iii) of this Section 4.08, restrictions contained in security agreements agreements, mortgages or similar documents securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsagreements;
(vf) in the case of clause (iii) of this Section 4.08, any instrument governing or evidencing Indebtedness of a Person acquired by an Issuer or any Restricted Subsidiary of an Issuer at the time of such acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired; provided, however, that such Indebtedness is not incurred in connection with or in contemplation of such acquisition;
(g) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the 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
(vih) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith arising or existing by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation reason of applicable law.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Issuer will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the Borrower or any other Restricted Subsidiary Issuer, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower Issuer or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Subsidiary, except:
(i1) any encumbrance or restriction (A) pursuant to an a Credit Facility or any agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or ; (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower Issuer or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerIssuer or a Restricted Subsidiary) and outstanding on such date;
; (iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i1) or (ii2) or of this clause (iii) Section 4.6 or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i1) or (ii2) or of this clause (iii)Section 4.6; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment taken as a whole are not materially no less favorable to the Lenders, taken as a whole, Noteholders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements (as determined in good faith by the Board of Directors);
Directors of the Issuer; (iv4) in the case of clause (c) of this Section 6.03iii), any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar other contract; (5) in the case of clause (iii), (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.or
Appears in 1 contract
Sources: Indenture (Spectrasite Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability legal right of any Restricted Subsidiary to:
(a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness or other obligations owed obligation owed, to the Borrower Company or any other Restricted Subsidiary (it being understood that the priority of 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),Subsidiary;
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Subsidiary; or
(c) transfer any of its property or assets Property to the Borrower Company or any other Restricted Subsidiary Subsidiary. Such limitation will not apply:
(it being understood that such transfers shall not include any type of transfer described in clause 1) with respect to clauses (a) or ), (b) aboveand (c); except, to encumbrances and restrictions:
(iA) in agreements and instruments (including any Bank Credit Facilities) as in effect on the Issue Date,
(B) relating to Indebtedness of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such encumbrance or restriction (A) pursuant to an agreement was not created in effect at or entered into on the Effective Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock anticipation of or Indebtedness Incurred by such Restricted Subsidiary prior to in connection with the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;Subsidiary, or
(iiiC) any that result from the renewal, refinancing, extension or amendment of an agreement that is the subject of clause (c)(1)(A) or (B) above or clause (c)(2)(A) or (B) below, provided that such encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are is not materially less favorable to the Lenders, taken as a whole, Holders of 7 5/8% Notes than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance those under or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary pursuant to the extent such encumbrance agreement so renewed, refinanced, extended or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction thatamended, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the BorrowerCompany and,
(2) or with respect to clause (yc) other Indebtedness or Preferred Stock of a Subsidiary Guarantoronly, in each case to:
(A) restrictions pursuant to Liens permitted to be Incurred pursuant to and secured without also securing the provisions of 7 5/8% Notes under Section 6.13;
(ix) customary provisions in joint venture agreements 4.10 and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in that limit the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions right of the type described in clause (c) above on debtor to dispose of the property Property subject to such lease, license, contract or other similar agreement;Lien,
(xiB) restrictions on cash any encumbrance or other deposits restriction applicable to Property at the time it is acquired by the Company or net worth imposed by customers under contracts entered into a Restricted Subsidiary, so long as such encumbrance or restriction relates solely to the Property so acquired and was not created in the ordinary course anticipation of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;acquisition,
(xiiiC) customary provisions restricting subletting or assignment of any agreement entered into leases and customary provisions in the ordinary course other agreements that restrict assignment of business; such agreements or rights thereunder, and;
(xivD) any restriction created by operation customary restrictions contained in asset sale agreements limiting the transfer of applicable lawsuch assets pending the closing of such sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability right of any Restricted Subsidiary to:
(ai) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock or pay any Indebtedness or other obligations owed Equity Interests to the Borrower or any other Restricted Subsidiary (it being understood that the priority of 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)Subsidiary,
(bii) pay any Indebtedness or other obligation owed to the Borrower, a Subsidiary Guarantor or any other Restricted Subsidiary,
(iii) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Subsidiary, or
(civ) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or Subsidiary.
(b) above); exceptThe foregoing limitations will not apply:
(i) any encumbrance or restriction With respect to Sections 8.08(a)(i), (ii), (iii) and (iv), to restrictions which are:
(A) pursuant to an agreement in effect at or entered into on the Effective DateClosing Date (as such restrictions may be amended from time to time, including pursuant provided that any such amendment is not materially more restrictive as to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or such Restricted Subsidiary);
(B) of the type imposed by any Credit Document or First-Lien Credit Document;
(C) imposed by the Prior European Facility Credit Agreement with respect to Indebtedness permitted to be Incurred on or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant subsequent to the permissions of Section 6.13; Closing Date (as such restrictions may be amended from time to time, provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no restriction is not materially more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facilityas to such Restricted Subsidiary);
(iiD) any encumbrance or restriction with respect relating to Indebtedness of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to existing at the date on which such Restricted Subsidiary was acquired by the Borrower or time it became a Restricted Subsidiary (other than Capital Stock issued if such restriction was not created in connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on Borrower or a Subsidiary Guarantor (as such daterestrictions may be amended from time to time in a manner not materially more restrictive as to such Restricted Subsidiary);
(iiiE) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement that result from the refinancing of Indebtedness Incurred incurred pursuant to an agreement referred to in the preceding clauses Section 8.08(b)(i)(A), (iB) or (iiD) or this clause (iii) or contained above; provided such restriction is no less favorable in any amendment, restatement, modification, renewal, supplement, rewriting, replacement material respect to the Lenders than those under the agreement evidencing the Indebtedness so refinanced;
(F) restrictions on cash or refinancing of an agreement referred to other deposits or net worth imposed by leases or other agreements entered into in the preceding clauses ordinary course of business;
(iG) any encumbrances or restrictions required by any foreign or governmental, local or regulatory authority having jurisdiction over the Borrower, or any Restricted Subsidiary or any of their businesses in connection with any development grant made or other assistance provided to the Borrower, or any Restricted Subsidiary by such governmental authority;
(iiH) customary provisions in joint venture or this clause (iii)similar agreements or other arrangements with minority investors in Restricted Subsidiaries and customary provisions in Indebtedness incurred by Restricted Subsidiaries organized outside the United States; provided, however, that such encumbrance or restriction is applicable only to such Restricted Subsidiary; and provided, further, that (i) the encumbrances encumbrance or restriction is customary in comparable agreements and (ii) the Borrower determines that any such encumbrance or restriction will not materially affect the ability of the Borrower to make any anticipated payments of the Obligations;
(I) customary restrictions contained in asset sale, stock sale, merger and other similar agreements limiting the transfer, disposition or distribution of such property pending the closing of such sale, including any restriction imposed with respect to such Restricted Subsidiary pursuant to an agreement are not materially less favorable to dispose of all or substantially all the Lenders, taken as a whole, than the original encumbrances and restrictions contained in Equity Interests or assets of such agreements (as determined in good faith by the Board of Directors)Restricted Subsidiary;
(ivJ) customary restrictions imposed on the transfer or use of copyrighted or patented materials or other Intellectual Property and customary provisions in agreements that restrict the case assignment of clause such agreements or any rights thereunder or in leases governing leasehold interests;
(cK) any agreement for the sale or other disposition of this a Restricted Subsidiary that restricts distributions of assets (including Equity Interests) by that Restricted Subsidiary pending its sale or other disposition;
(L) restrictions on Indebtedness incurred by any Restricted Subsidiary that is a Foreign Subsidiary; provided that such restrictions are then customary for Indebtedness of such type incurred in such jurisdiction; or
(M) restrictions resulting from any U.S. or foreign law, rule, regulation or order applicable to the Borrower or any Restricted Subsidiary.
(ii) With respect to Section 6.038.08(a)(iv) only, any encumbrance or restriction to restrictions:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset relating to Indebtedness that is subject permitted to a lease, license or similar contract, be incurred and secured without also securing the Obligations pursuant to 8.01 that limit the right of the debtor to dispose of the property securing such Indebtedness;
(B) encumbering property at the time such property was acquired by the Borrower or any Restricted Subsidiary, so long as such restrictions relate solely to the property so acquired and were not created in connection with or in anticipation of such acquisition;
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder;
(D) imposed by virtue of any transfer of, agreement to transfer, option or right with respect to, to or Lien on any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;; or
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assetsE) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created under any purchase money Indebtedness described in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the BorrowerSection 8.01(g) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into Capitalized Lease Obligation in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable respect only to the assets that are property the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawthereof.
Appears in 1 contract
Sources: Second Lien Credit Agreement (HUGHES Telematics, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsCompany, 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),
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(i1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
(iiiC) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(1) (A) or 4.05(1) (B) or this Section 4.05(1) (C) or contained in any amendment to an agreement referred to in Section 4.05(1) (A) or 4.05(1) (B) or this Section 4.05(1) (C); PROVIDED, HOWEVER, that the encumbrances and restrictions, taken as a whole, with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Securityholders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;
(D) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock 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;
(viE) restrictions created in connection with a Qualified Receivables Transaction thatany restriction arising under applicable law, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entityregulation or order;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viiiF) any encumbrance or restriction pursuant to (x) other contained in the terms of any Indebtedness of the Company or Preferred Stock any Restricted Subsidiary not Incurred in violation of a Restricted Subsidiarythis Indenture; provided PROVIDED, HOWEVER, that such encumbrances or restrictions will not materially affect restrictions, taken as a whole, are no more restrictive in the Borrower's ability to make anticipated principal and interest payments on the Loans (aggregate than those contained in this Indenture, as determined in good faith by the Company's Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary GuarantorDirectors, in each case permitted to whose determination shall be Incurred pursuant to the provisions of Section 6.13conclusive;
(ixG) any encumbrance or restriction contained in any agreement or instrument governing Senior Indebtedness (including the Credit Agreement) not Incurred in violation of this Indenture; PROVIDED, HOWEVER, that such encumbrances or restrictions, taken as a whole, are no more restrictive in the aggregate than those contained in the Credit Agreement, as determined in good faith by the Company's Board of Directors, whose determination shall be conclusive; and
(H) any encumbrance or restriction imposed on any Consolidated Managed Subsidiary by (and for the benefit of) the Company or any Subsidiary Guarantor; and
(2) with respect to clause (c) only,
(A) any encumbrance or restriction consisting of customary nonassignment provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, leases governing leasehold interests or contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions provisions restrict the transfer of the type described lease or the property leased thereunder or the contract;
(B) any encumbrance or restriction contained in clause (c) above on 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 lease, license, contract Security agreements or other similar agreement;mortgages; and
(xiC) restrictions on cash any encumbrance or other deposits or net worth restriction with respect to assets of a Restricted Subsidiary imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only pursuant to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any an agreement entered into in for the ordinary course sale or disposition of business; and;
(xiv) any restriction created by operation of applicable lawsuch assets.
Appears in 1 contract
Sources: Indenture (Diagnostic Pathology Management Services Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Issuer shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(a) to pay dividends or make any other distributions on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations In- debtedness owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsIssuer, 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),
(b) to make any loans or advances to the Borrower Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) to transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Issuer, except:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Date, Issue Date (including pursuant to this Agreement, the Public Bond Documents, Credit Agreement and related security documents and the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to Senior Secured Notes and any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facilityrelated agreements);
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Issuer (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerIssuer) and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.10 or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.10 or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially no less favorable to the Lenders, taken as a whole, Noteholders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors)agreements;
(iv) any such encumbrance or restriction consisting of customary non-assignment or subletting provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(v) in the case of clause (c) of this Section 6.03above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsmortgages;
(vvi) 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 any assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases encumbrance or licenses and other agreements restriction pursuant to an agreement entered into after the Issue Date governing Indebtedness Incurred by a Restricted Subsidiary in compliance with Section 4.09; provided, however, that the Borrower or encumbrances and restrictions with respect to any Restricted Subsidiary contained in any such agreement are no less favorable to the Holders of the Note than encumbrances and restrictions with respect to such Restricted Subsidiary in the ordinary course of businessCredit Agreement on the Issue Date;
(viii) any encumbrance or restriction pursuant to an agreement with a governmental entity providing for developmental financing on terms which are more favorable (xat the time such agreement is entered into) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13than those available from third party financing sources;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) with respect to a Securitization Subsidiary, an agreement relating solely to such joint venture, in each case entered into in the ordinary course Indebtedness of business;a Securitization Subsidiary which is permitted under Section 4.09 above or pursuant to an agreement relating to a Permitted Units Financing by a Securitization Subsidiary; or
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawthis Indenture.
Appears in 1 contract
Sources: Indenture (Mobile Field Office Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Issuer will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (ai) pay dividends or make any other distributions on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the Borrower or any other Restricted Subsidiary Issuer, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower Issuer or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Subsidiary, except:
(i1) any encumbrance or restriction (A) pursuant to an a Credit Facility or any agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or ; (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness or Capital Stock of Incurred or Indebtedness Incurred issued by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower Issuer or a Restricted Subsidiary (other than Indebtedness or Capital Stock Incurred or issued or Indebtedness Incurred as consideration infor, or to provide all or any portion of the funds or credit support utilized to consummate, consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerIssuer or a Restricted Subsidiary) and outstanding on such date;
; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii3) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of an agreement effecting a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.39 35
Appears in 1 contract
Sources: Indenture (Spectrasite Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Borrowers will not, and 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 any Borrower or any other Restricted Subsidiary of any Borrower, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the of any Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the any Borrower or any other Restricted Subsidiary of any Borrower, except any encumbrance or restriction:
(it being understood a) pursuant to an agreement or instrument as in effect at or entered into on the date hereof, including without limitation the Cash Flow Term Facility and the Subordinated Notes Purchase Agreement;
(b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Stock of a Person, which Person is acquired by or merged or consolidated with or into the U.S. Parent Borrower or any Restricted Subsidiary, or 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, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such transfers shall Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation) and not include applying to the U.S. Parent Borrower or any type of transfer described the Restricted Subsidiaries (other than to any such Person or assets so acquired);
(c) pursuant to an agreement or instrument replacing or contained in any amendment, supplement or other modification to an agreement referred to in clause (a) or (b) above); except:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such replacement agreement or amendment taken as a whole are not materially less favorable to the Lenders, taken as a whole, Lenders than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors)original agreement;
(ivd) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, (Bii) 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, (Ciii) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict restricting the transfer of the property or assets subject thereto, (iv) pursuant to such security 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 Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsassets so acquired;
(ve) 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 Capital all or substantially all the 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;
(vif) restrictions created in connection with a Qualified Receivables Transaction thatby reason of any applicable law, in rule, regulation or order, or required by any regulatory authority having jurisdiction over the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the U.S. Parent Borrower or any Restricted Subsidiary in the ordinary course or any of businesstheir businesses;
(viiig) any encumbrance or restriction pursuant to an agreement or instrument (xi) other relating to any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to Section 9.1, if the encumbrances and restrictions contained in any such agreement or Preferred Stock of instrument taken as a Restricted Subsidiary; provided that such encumbrances or restrictions will whole are not materially affect less favorable to the Borrower's ability to make anticipated principal Lenders than the encumbrances and interest payments on restrictions contained in the Loans agreements set forth in clause (a) above (as determined in good faith by the Board U.S. Parent Borrower);
(h) restrictions and conditions on any Foreign Subsidiary by the terms of Directors any Indebtedness of the Borrower) or (y) other Indebtedness or Preferred Stock of a such Foreign Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13incurred hereunder;
(ixi) 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 (including stockholder agreements) relating applicable to joint ventures permitted under Section 9.5 and applicable solely to such joint venture, in each case entered into in the ordinary course of business;
(xk) customary provisions contained negative pledges and restrictions on Liens in leases, licenses, contracts favor of any holder of Indebtedness permitted under Section 9.1 but only if such negative pledge or restriction expressly permits Liens for the benefit of the Administrative Agent and/or the Collateral Agent and other similar agreements entered into in the ordinary course of business Lenders with respect to the extent credit facilities established hereunder and the Obligations under the Credit Documents on a senior basis and without a requirement that such obligations impose restrictions holders of the type described in clause (c) above such Indebtedness be secured by such Liens equally and ratably or on the property subject to such lease, license, contract or other similar agreementa junior basis;
(xil) restrictions on cash or cash, other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xiim) Secured Indebtedness otherwise permitted to be incurred under Sections 9.1(f) and (j) that limit the right of the obligor to dispose of the assets securing such Indebtedness; and
(n) customary provisions in operating or leases, subleases, licenses, sublicenses and other similar agreementscontracts restricting the assignment thereof, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement each case entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Abl Credit Agreement (Univar Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Borrower or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsBorrower, 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),
(b) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Borrower, except:
(i1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Closing Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained Agreement as in any effect on such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facilitydate;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(iiiC) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 6.03(1)(A) or (B) or this clause (C) or contained in any amendment to an agreement referred to in Section 6.03(1)(A) or (B) or this clause (C); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Borrower than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;
(D) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the 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
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viiiE) any encumbrance or restriction pursuant arising by reason of applicable law, rule or regulation; and with respect to clause (xc) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;only,
(ixF) any encumbrance or restriction consisting of customary nonassignment provisions in joint venture agreements leases and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business licenses governing leasehold interests or licenses to the extent such obligations impose restrictions provisions restrict the transfer of the type described lease or license or the property leased or licensed thereunder; and
(G) any encumbrance or restriction (including Permitted Liens) contained in clause security agreements or mortgages securing Indebtedness (cincluding Capital Lease Obligations) above on of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such lease, license, contract security agreements or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawmortgages.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiary 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 Borrower or any other Restricted Subsidiary Company, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause Company, except: (a) or (b) above); except:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL New Credit Facility, the Securitization Facility or ; (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iib) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred issued by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company and outstanding on such date (other than Capital Stock issued or Indebtedness Incurred as consideration inin anticipation of, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Borrower) and outstanding on such date;
Company); (iiic) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement evidencing Indebtedness Incurred without violation of this Indenture or effecting a refinancing, refunding or replacement refinancing of Indebtedness Incurred issued pursuant to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any of such agreement, refinancing agreement are not materially less favorable to the Lendersor amendment, taken as a whole, than are no less favorable to the original encumbrances and restrictions contained holders of the Securities in such agreements (any material respect, as determined in good faith by the Board of Directors);
Directors of the Company, than encumbrances and restrictions with respect to such Restricted Subsidiary contained in agreements in effect at, or entered into on, the Issue Date; (ivd) in the case of clause (c) of this Section 6.03iii), any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contractproperty or asset, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower Company or any Restricted Subsidiary not otherwise prohibited by this AgreementIndenture, (C) 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 that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any of its Subsidiaries in any manner material to the Company or any such Restricted Subsidiary; (e) in the case of clause (iii) above, restrictions contained in security agreements agreements, mortgages or similar documents securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests agreements; (f) in the owner case of such property clause (iii) above, any instrument governing or in evidencing Indebtedness of a Person acquired by the Company or any Restricted Subsidiary of the Borrower Company at the time of such acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired; provided, however, that owns a direct such Indebtedness is not incurred in connection with or indirect Equity Interest in contemplation of such owner and acquisition; (D) ordinary course provisions restricting the assignability of contracts;
(vg) any restriction with respect to such 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 (vih) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith arising or existing by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation reason of applicable law.
Appears in 1 contract
Sources: Indenture (Comforce Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any Restricted Subsidiary that is not a Subsidiary Guarantor to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsCompany, 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),
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(i1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
(iiiC) any encumbrance or restriction pursuant to an agreement 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 encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Securityholders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;
(D) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the 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;
(viE) restrictions created in connection with a Qualified Receivables Transaction thatrespect to any Foreign Subsidiary, any encumbrance or restriction contained in the good faith determination terms of any Indebtedness, or any agreement pursuant to which such Indebtedness was issued;
(F) provisions limiting the disposition or distribution of assets or property or transfer of Capital Stock in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, limited liability company organizational documents, and other similar agreements entered into in the ordinary course of business, consistent with past practice or with the approval of the Company’s Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply which limitation is applicable only to the assets, property or Capital Stock that are the subject of such Receivables Entityagreements;
(viiG) any customary provisions in leasesrestrictions on cash, subleases Temporary Cash Investment or licenses and other agreements deposits or net worth imposed by customers or lessors under contracts or leases entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ixH) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(xI) any restriction arising under applicable law, regulation or order; and
(J) restrictions or conditions, governing any Indebtedness incurred in connection with Permitted Securitizations which was permitted under Section 4.03(b)(13) if such restrictions or conditions apply only to the Receivables and the Related Assets that are the subject of the Permitted Securitization, and restrictions or conditions imposed on any SPE Subsidiary in connection with any Permitted Securitization;
(2) with respect to clause (c) only,
(A) any encumbrance or restriction consisting of customary nonassignment provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business leases governing leasehold interests to the extent such obligations impose restrictions provisions restrict the transfer of the type described lease or the property leased thereunder;
(B) any encumbrance or restriction contained in clause (c) above on 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 lease, license, contract security agreements or other similar agreementmortgages;
(xiC) non-assignment provisions or subletting restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreementscontracts, asset sale agreements, leases and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement licenses entered into in the ordinary course of business; and;
(xivD) encumbrances on property that exist at the time the property was acquired by the Company or a Restricted Subsidiary, provided such encumbrances were not put in place in anticipation of such acquisition; and
(3) any restriction created encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by operation any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of applicable lawthe contracts, instruments or obligations referred to in paragraphs (1) and (2) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Sources: Indenture (Affinia Group Intermediate Holdings Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Company or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsSubsidiary, 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),
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower Company or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); except:
(i1) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date to the extent and in the manner such agreements are in effect on the Issue Date, including ;
(2) any encumbrance or restriction pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant an agreement governing other Senior Indebtedness permitted to be Incurred under this Indenture; provided that, with respect to any agreement -------- governing such other Senior Indebtedness, the provisions relating to such encumbrance or document governing or evidencing any Indebtedness incurred pursuant restriction are no less favorable to the permissions Company in any material respect as determined by the Board of Section 6.13; provided that Directors in its reasonable and good faith judgment than the encumbrances and restrictions provisions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by Credit Facility as in effect on the ABL Credit FacilityIssue Date;
(ii3) the Notes and this Indenture;
(4) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Capital Stock Person, or the properties or assets of or Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (any Person, other than Capital Stock issued the Person or Indebtedness Incurred as consideration in, the properties or to provide all or any portion assets of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such datePerson so acquired;
(iii5) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i1), (2) or (ii4) of this Section 4.11 or this clause (iii5) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i1), (2) or (ii4) of this covenant or this clause (iii5); provided, however, that the -------- ------- encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially less favorable to the Lendersfavorable, taken as a whole, to the Holders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors)predecessor agreements;
(iv6) any encumbrance or restriction consisting of customary non-assignment provisions in any contract or in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(7) in the case of clause (c) of this Section 6.03above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements agreements, mortgages or other arrangements securing Indebtedness or other obligations of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements agreements, mortgages or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsother arrangements;
(v) 8) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the 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
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii9) any encumbrance or restriction pursuant to (x) other in respect of any Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case Guarantor permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawthis Indenture.
Appears in 1 contract
Sources: Indenture (Nm Licensing LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on 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 Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsCompany, 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),
(b) to make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
: (i) with respect to any series of Securities, any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Date, including pursuant Issue Date with respect to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13such series; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating applicable to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration inan agreement entered into in connection with, or to provide all or any portion of the funds or credit support utilized to consummatein anticipation of, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an any other agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant contained in any amendment to an agreement referred to in the preceding clauses clause (i) or (ii) or of this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) Section 10.07 or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or amendment are not materially no less favorable to the Lenders, taken as a whole, Holders of Securities than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such the agreements referred to in clauses (i) or (ii) of this Section 10.07, as determined in good faith by the Board of Directors);
case may be; (iv) any such encumbrance or restriction consisting of customary non-assignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder; (v) in the case of clause (c) of this Section 6.03above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner mortgages; and (D) ordinary course provisions restricting the assignability of contracts;
(vvi) 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;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (Contifinancial Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability right of any Restricted Subsidiary to:
(ai) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock or pay any Indebtedness or other obligations owed Equity Interests to the Borrower or any other Restricted Subsidiary (it being understood that the priority of 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)Subsidiary,
(bii) pay any Indebtedness or other obligation owed to the Borrower, a Subsidiary Guarantor or any other Restricted Subsidiary,
(iii) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Subsidiary, or
(civ) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or Subsidiary.
(b) above); exceptThe foregoing limitations will not apply:
(i) any encumbrance or restriction With respect to Sections 8.08(a)(i), (ii), (iii) and (iv), to restrictions which are:
(A) pursuant to an agreement in effect at or entered into on the Effective DateClosing Date (as such restrictions may be amended from time to time, including pursuant provided that any such amendment is not materially more restrictive as to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or such Restricted Subsidiary);
(B) of the type imposed by any Credit Document;
(C) imposed by the Prior European Facility Credit Agreement with respect to Indebtedness permitted to be Incurred on or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant subsequent to the permissions of Section 6.13; Closing Date (as such restrictions may be amended from time to time, provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no restriction is not materially more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facilityas to such Restricted Subsidiary);
(iiD) any encumbrance or restriction with respect relating to Indebtedness of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to existing at the date on which such Restricted Subsidiary was acquired by the Borrower or time it became a Restricted Subsidiary (other than Capital Stock issued if such restriction was not created in connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on Borrower or a Subsidiary Guarantor (as such daterestrictions may be amended from time to time in a manner not materially more restrictive as to such Restricted Subsidiary);
(iiiE) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement that result from the refinancing of Indebtedness Incurred incurred pursuant to an agreement referred to in the preceding clauses Section 8.08(b)(i)(A), (iB) or (iiD) or this clause (iii) or contained above; provided such restriction is no less favorable in any amendment, restatement, modification, renewal, supplement, rewriting, replacement material respect to the Lenders than those under the agreement evidencing the Indebtedness so refinanced;
(F) restrictions on cash or refinancing of an agreement referred to other deposits or net worth imposed by leases or other agreements entered into in the preceding clauses ordinary course of business;
(iG) any encumbrances or restrictions required by any foreign or governmental, local or regulatory authority having jurisdiction over the Borrower, or any Restricted Subsidiary or any of their businesses in connection with any development grant made or other assistance provided to the Borrower, or any Restricted Subsidiary by such governmental authority;
(iiH) customary provisions in joint venture or this clause (iii)similar agreements or other arrangements with minority investors in Restricted Subsidiaries and customary provisions in Indebtedness incurred by Restricted Subsidiaries organized outside the United States; provided, however, that such encumbrance or restriction is applicable only to such Restricted Subsidiary; and provided, further, that (i) the encumbrances encumbrance or restriction is customary in comparable agreements and (ii) the Borrower determines that any such encumbrance or restriction will not materially affect the ability of the Borrower to make any anticipated payments of the Obligations;
(I) customary restrictions contained in asset sale, stock sale, merger and other similar agreements limiting the transfer, disposition or distribution of such property pending the closing of such sale, including any restriction imposed with respect to such Restricted Subsidiary pursuant to an agreement are not materially less favorable to dispose of all or substantially all the Lenders, taken as a whole, than the original encumbrances and restrictions contained in Equity Interests or assets of such agreements (as determined in good faith by the Board of Directors)Restricted Subsidiary;
(ivJ) customary restrictions imposed on the transfer or use of copyrighted or patented materials or other Intellectual Property and customary provisions in agreements that restrict the case assignment of clause such agreements or any rights thereunder or in leases governing leasehold interests;
(cK) any agreement for the sale or other disposition of this a Restricted Subsidiary that restricts distributions of assets (including Equity Interests) by that Restricted Subsidiary pending its sale or other disposition;
(L) restrictions on Indebtedness incurred by any Restricted Subsidiary that is a Foreign Subsidiary; provided that such restrictions are then customary for Indebtedness of such type incurred in such jurisdiction; or
(M) restrictions resulting from any U.S. or foreign law, rule, regulation or order applicable to the Borrower or any Restricted Subsidiary.
(ii) With respect to Section 6.038.08(a)(iv) only, any encumbrance or restriction to restrictions:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset relating to Indebtedness that is subject permitted to a lease, license or similar contract, be incurred and secured without also securing the Obligations pursuant to 8.01 that limit the right of the debtor to dispose of the property securing such Indebtedness;
(B) encumbering property at the time such property was acquired by the Borrower or any Restricted Subsidiary, so long as such restrictions relate solely to the property so acquired and were not created in connection with or in anticipation of such acquisition;
(C) resulting from customary provisions restricting subletting or assignment of leases or customary provisions in other agreements that restrict assignment of such agreements or rights thereunder;
(D) imposed by virtue of any transfer of, agreement to transfer, option or right with respect to, to or Lien on any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;; or
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assetsE) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created under any purchase money Indebtedness described in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the BorrowerSection 8.01(g) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into Capitalized Lease Obligation in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable respect only to the assets that are property the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawthereof.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to Borrower or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsBorrower, 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),
(b) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Borrower, except:
(i1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective DateClosing Date (including the Other Credit Agreement, including pursuant to this Agreement, the Public Bond Third Lien Notes Indenture, the Third Lien Notes, the Third Lien Note Documents, the Subsidiary Guarantees, Security Documents and the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit FacilityIntercreditor Agreements);
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the 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;
(viD) restrictions created any encumbrance or restriction with respect to contractual requirements of a Receivables Subsidiary in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that any such encumbrances or restrictions apply only to such Receivables EntitySubsidiary;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xiE) restrictions on cash or other deposits or net worth imposed by customers customers, suppliers or landlords under contracts entered into in the ordinary course of business;
(xiiF) [Reserved];
(G) customary provisions in operating or joint venture agreements and other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of businessbusiness that restrict the transfer of ownership interests in such joint venture; and;
(xivH) any encumbrance or restriction created contained in any Indebtedness Incurred by operation a Foreign Subsidiary in accordance with this Agreement to the extent such encumbrance or restriction applies only to the assets of applicable lawsuch Foreign Subsidiary; and
(2) with respect to clause (c) only,
(A) any encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder; and
(B) any encumbrance or restriction contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages; and
(3) 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 such amendments or refinancings are, in the good faith judgment of the Board of Directors of Borrower, no more restrictive with respect to such dividend and other restrictions than those contained in the dividend or other restrictions prior to such amendment or refinancing.
Appears in 1 contract
Sources: Loan and Security Agreement (Commercial Vehicle Group, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Arch Western shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability right of any Restricted Subsidiary to:
(a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness Debt or other obligations owed obligation owed, to the Borrower Arch Western or any other Restricted Subsidiary (it being understood that the priority of 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)Subsidiary,
(b) make any loans or advances to the Borrower Arch Western or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Subsidiary, or
(c) transfer any of its property or assets Property to the Borrower Arch Western or any other Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall d) The foregoing limitations will not include any type of transfer described in clause (a) or (b) above); exceptapply:
(i) any encumbrance or restriction with respect to clauses (Aa), (b) pursuant and (c), to an agreement restrictions:
(1) in effect at or entered into on the Effective DateIssue Date (including, including pursuant to this Agreementwithout limitation, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred restrictions pursuant to the permissions of Section 6.13; provided that Notes and the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit FacilityIndenture);
(ii2) any encumbrance or restriction with respect relating to Debt of a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to Arch Western and existing at the date on which such Restricted Subsidiary was acquired by the Borrower or time it became a Restricted Subsidiary (other than Capital Stock issued if such restriction was not created in connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;Arch Western, or
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in that result from any amendment, restatement, modification, renewal, supplement, rewriting, renewal or replacement or refinancing of an agreement referred to in the preceding clauses clause (i1)(A) or (iiB) above or in clause (2)(A) or this clause (iii); providedB) below, however, that the encumbrances and provided such restrictions contained in any such agreement are not materially less favorable to the Lendersfavorable, taken as a whole, to the Holders of Notes than those under the original encumbrances and restrictions contained in such agreements (as determined in good faith by agreement evidencing the Board of Directors);Debt so Refinanced, and
(ivii) in the case of with respect to clause (c) only, to restrictions:
(1) relating to Debt that is permitted to be Incurred and secured without also securing the Notes pursuant to Section 4.06 and 4.07 of this Section 6.03, any encumbrance or restriction (A) Indenture that restricts in a customary manner limit the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary debtor to the extent such encumbrance or restrictions restrict the transfer dispose of the property subject to Property securing such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;Debt,
(v2) any restriction with respect to a Restricted Subsidiary (encumbering Property at the time such Property was acquired by Arch Western or any of its property Restricted Subsidiaries, so long as such restrictions relate solely to the Property so acquired and were not created in connection with or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets in anticipation of such Restricted Subsidiary acquisition,
(3) 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
(4) customary restrictions contained in asset sale agreements limiting the property or assets that are subject to transfer of such restriction) Property pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawsale.
Appears in 1 contract
Sources: Indenture (Arch of Wyoming LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of 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),Borrower;
(b) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Borrower; or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Borrower, except:
(i) any encumbrance or restriction (A) pursuant to applicable law, rule, regulation or order or an agreement in effect at or entered into on the Effective Indenture Closing Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Borrower) and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (iSection 5.05(c)(i) or (iiSection 5.05(c)(ii) or this clause (iiiSection 5.05(c)(iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses (iSection 5.05(c)(i) or (iiSection 5.05(c)(ii) or this clause (iiiSection 5.05(c)(iii); provided, however, that the encumbrances and restrictions contained in any such Refinancing agreement or amendment are not materially no less favorable in any material respect to the Lenders, taken as a whole, Lenders than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors)predecessor agreements;
(iv) in the case of clause (c) of this Section 6.035.05(c), any encumbrance or restriction restriction
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract, or
(B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in mortgages, pledges and other security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsagreements;
(v) any restriction with respect to a Restricted Subsidiary (or Subsidiary, any of its property or assets) restriction imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created any encumbrance or restriction existing under or by reason of Indebtedness or other contractual requirements of a Receivables Entity in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided provided, however, that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into purchase money obligations for property acquired in the ordinary course of business to the extent such obligations and Capitalized Lease Obligations that impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract purchased or other similar agreementleased of the nature described in Section 5.05(c);
(xiviii) 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;
(ix) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into customers, suppliers or, in the ordinary course of business;, other third parties; and
(xiix) customary provisions with respect to any Foreign Subsidiary, any encumbrance or restriction contained in operating the terms of any Indebtedness, or other similar agreementsany agreement pursuant to which such Indebtedness was issued, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;if:
(xiiiA) customary provisions restricting assignment of any agreement entered into the encumbrance or restriction applies only in the ordinary course event of business; and;a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, or
(xivB) any at the time such Indebtedness is Incurred, such encumbrance or restriction created is not expected to materially affect the Borrower’s ability to make principal or interest payments on the Loans, as determined in good faith by operation a Financial Officer of applicable lawthe Borrower, whose determination shall be conclusive.
Appears in 1 contract
Sources: Third Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsCompany, 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),
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(i) with respect to clauses (a), (b) and (c):
(A) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date (including the Credit Agreement in effect on the Issue Date, including pursuant to this AgreementIndenture, the Public Bond Documents, Securities and the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility);
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (iSections 4.05(i)(A) or (iiB) or this clause (iiiC) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses (iSection 4.05(i)(A) or (iiB) or this clause (iiiC); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially no less favorable to the Lenders, taken Company (as a whole, reasonably determined by the Company in good faith) than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors)predecessor agreements;
(ivD) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, to (Ci) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary or (ii) a business unit, division, product line or the property line of business or other assets that are subject to such restriction) in a transaction permitted under Section 4.06, in each case pending the closing of such sale or disposition;
(viE) restrictions created any encumbrance or restriction pursuant to applicable law, rule, regulation or order
(F) provisions contained in connection any approval, license or permit with a Qualified Receivables Transaction thatregulatory authority, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements each case entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viiiG) restrictions on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into the ordinary course of business, including such restrictions imposed by customers or insurance, surety or bonding companies;
(H) any encumbrance or restriction pursuant with respect to (x) other Indebtedness a Foreign Subsidiary entered into the ordinary course of business or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions terms of Section 6.13Indebtedness that was Incurred by such Foreign Subsidiary in compliance with the terms of this Indenture;
(ixI) provisions contained in any license, permit or other accreditation with a regulatory authority entered into the ordinary course of business;
(J) provisions in agreements or instruments which prohibits the payment or making of dividends or other distributions other than on a pro rata basis;
(K) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered in the ordinary course of business (including in the case of NCR Manaus, restrictions and conditions set forth in the Brazil Transaction Documents); and
(L) any encumbrance or restriction contained in the terms of any agreement under which Indebtedness is permitted to be Incurred after the Issue Date pursuant to Section 4.03 if (x) either (i) the encumbrance or restriction applies only in the event of and during the continuance of a payment default or a default with respect to a financial covenant contained in such joint ventureIndebtedness or agreement or (ii) the Company reasonably determines in good faith at the time any such Indebtedness is Incurred (and at the time of any modification of the terms of any such encumbrance or restriction) that any such encumbrance or restriction shall not materially affect the Company’s ability to make principal or interest payments on the Securities and any other Indebtedness that is an obligation of the Company and (y) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings or agreements (as reasonably determined by the Company in good faith).
(ii) with respect to clause (c) only:
(A) any encumbrance or restriction consisting of customary provisions in leases and other agreements to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(B) any encumbrance or restriction contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages;
(C) any encumbrance or restriction contained in any Secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.03 and 4.13 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(D) any encumbrance or restriction contained in any agreement relating to Purchase Money Indebtedness permitted by Section 4.03 if such restrictions or conditions apply only to the assets securing such Indebtedness; and
(E) any encumbrance or restriction consisting of customary non-assignment provisions in a lease, license or similar contract, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (NCR Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, 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 Borrower or any other Restricted Subsidiary Company, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above)Company; except:
(ia) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective 1997 Security Issue Date, including pursuant to this the Credit Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or ; (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iib) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement relating to any Capital Indebtedness or Preferred Stock of or Indebtedness Incurred issued by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company and 49 43 outstanding on such date (other than Capital Indebtedness or Preferred Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Company or was acquired by the Borrower) and outstanding on such date;
Company); (iiic) any encumbrance or restriction with respect to such a Restricted Subsidiary pursuant to an agreement evidencing Indebtedness Incurred without violation of this Indenture or effecting a refinancing, refunding or replacement refinancing of Indebtedness Incurred issued pursuant to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any of such agreement, refinancing agreement or amendment, taken as a whole, are not materially less favorable to the LendersHolders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the senior management of the Company or Board of Directors);
, than encumbrances and restrictions with respect to such Restricted Subsidiary contained in agreements in effect at, or entered into on, the 1997 Security Issue Date; (ivd) in the case of clause (ciii) of this Section 6.034.5, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license license, conveyance or contract or similar contractproperty or asset, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower Company or any Restricted Subsidiary not otherwise prohibited by this AgreementIndenture, (C) 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 that does not, individually or in the aggregate, detract from the value of property or assets of the Company or any of its Subsidiaries in any manner material to the Company or any such Restricted Subsidiary as determined in good faith by senior management of the Company; (e) in the case of clause (iii) of this Section 4.5, restrictions contained in security agreements agreements, mortgages or similar documents securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and agreements; (D) ordinary course provisions restricting the assignability of contracts;
(vf) any restriction with respect to such 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;
; (vig) encumbrances or restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination respect to Indebtedness of the Board of Directors, are necessary to effect such Qualified Receivables TransactionForeign Subsidiaries; provided that such restrictions apply only to such Receivables Entity;
(viii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will do not materially affect limit in any manner the Borrower's ability to make anticipated principal and interest payments of the Restricted Subsidiaries of the Company in existence on the Loans (as determined in good faith by the Board of Directors 1997 Security Issue Date from performing any of the Borroweracts referred to in clauses (i) or through (yiii) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to this Section 4.5 and (ii) the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions aggregate principal amount of the type described in clause Indebtedness of the Foreign Subsidiaries of the Company which includes such an encumbrance or restriction does not exceed $50.0 million; and (ch) above on the property subject to such lease, license, contract encumbrances or other similar agreement;
(xi) restrictions on cash arising or other deposits or net worth imposed existing by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation reason of applicable law.
Appears in 1 contract
Sources: Indenture (Viasystems Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability legal right of any Restricted Subsidiary to:
(a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness or other obligations owed obligation owed, to the Borrower Company or any other Restricted Subsidiary (it being understood that the priority of 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),Subsidiary;
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Subsidiary; or
(c) transfer any of its property or assets Property to the Borrower Company or any other Restricted Subsidiary Subsidiary. Such limitation will not apply:
(it being understood that such transfers shall not include any type of transfer described in clause 1) with respect to clauses (a) or ), (b) aboveand (c); except, to encumbrances and restrictions:
(iA) in agreements and instruments (including any Bank Credit Facilities) as in effect on the Issue Date,
(B) relating to Indebtedness of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such encumbrance or restriction (A) pursuant to an agreement was not created in effect at or entered into on the Effective Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock anticipation of or Indebtedness Incurred by such Restricted Subsidiary prior to in connection with the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;Subsidiary, or
(iiiC) any that result from the renewal, refinancing, extension or amendment of an agreement that is the subject of clause (c)(1)(A) or (B) above or clause (c)(2)(A) or (B) below, provided that such encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are is not materially less favorable to the Lenders, taken as a whole, Holders of 8⅞% Notes than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance those under or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary pursuant to the extent such encumbrance agreement so renewed, refinanced, extended or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction thatamended, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the BorrowerCompany and,
(2) or with respect to clause (yc) other Indebtedness or Preferred Stock of a Subsidiary Guarantoronly, in each case to:
(A) restrictions pursuant to Liens permitted to be Incurred pursuant to and secured without also securing the provisions of 8⅞% Notes under Section 6.13;
(ix) customary provisions in joint venture agreements 4.10 and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in that limit the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions right of the type described in clause (c) above on debtor to dispose of the property Property subject to such lease, license, contract or other similar agreement;Lien,
(xiB) restrictions on cash any encumbrance or other deposits restriction applicable to Property at the time it is acquired by the Company or net worth imposed by customers under contracts entered into a Restricted Subsidiary, so long as such encumbrance or restriction relates solely to the Property so acquired and was not created in the ordinary course anticipation of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;acquisition,
(xiiiC) customary provisions restricting subletting or assignment of any agreement entered into leases and customary provisions in the ordinary course other agreements that restrict assignment of business; such agreements or rights thereunder, and;
(xivD) any restriction created by operation customary restrictions contained in asset sale agreements limiting the transfer of applicable lawsuch assets pending the closing of such sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Parent shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to Parent or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsParent, 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),
(b) make any loans or advances to the Borrower Parent or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Parent, except:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this the Credit Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other Parent(other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerParent) and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.05 or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.05 or this clause (iii); provided, however, that the encumbrances and restrictions with respect to 62 55 such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially no less favorable to the Lenders, taken as a whole, Securityholders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors)predecessor agreements;
(iv) any such encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(v) in the case of clause (c) of this Section 6.03above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;mortgages; and
(vvi) 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;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (Octel Developments PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any other of its Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsSubsidiaries, 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),
(b) make any loans or advances to the Borrower Company or any other of its Restricted Subsidiary (it being understood that the subordination of loans Subsidiaries or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower Company or any other of its Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Subsidiaries, except:
(i) any encumbrance or restriction (A) pursuant to (a) applicable law or (b) an agreement in effect at or entered into on the Effective Closing Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the BorrowerCompany) and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (c) (i) or (c) (ii) of this Section 4.05 or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (ic)(i) or (iic)(ii) of this Section 4.05 or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such refinancing agreement or amendment are not materially no less favorable to the Lenders, taken as a whole, Holders than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors)predecessor agreements;
(iv) in the case of clause (c) of this Section 6.03), any encumbrance or restriction (A1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, contract or (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C2) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict restriction restricts the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;agreements; and
(v) any restriction with respect to a Restricted Subsidiary (or Subsidiary, any of its property or assets) restriction imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (Wki Holding Co Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will (a) Each of the Parent and the Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Parent, the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsCompany, 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),
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by Credit Facility and the Notes and this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit FacilityIndenture;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower Parent or a Restricted Subsidiary the Company, as the case may be (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) Company), and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.09(a) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i) or (ii) of this Section 4.09(a) or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially less favorable to the Lenders, taken as a whole, no more restrictive than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors)predecessor agreements;
(iv) any such encumbrance or restriction consisting of customary non-assignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(v) in the case of clause (c) of the initial sentence of this Section 6.034.09(a), any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsmortgages;
(vvi) 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;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;and
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into restrictions imposed by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions customers on cash or other deposits or net worth imposed amounts deposited by customers under them pursuant to contracts entered into in the ordinary course of business;.
(xiib) customary provisions in operating The Parent shall not create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on its ability to (a) make capital contributions or other similar agreementsInvestments in the Company or any Restricted Subsidiary or pay any Indebtedness owed to the Company or any Restricted Subsidiary, asset sale agreements(b) make any loans or advances to the Company or any Restricted Subsidiary or (c) transfer any of its property or assets to the Company or any Restricted Subsidiary, except:
(i) any encumbrance or restriction pursuant to any Credit Facilities and stock sale agreements any agreement in effect at or entered into on the Issue Date; and
(ii) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in connection the immediately preceding clause (i) of this Section 4.09(b) or this clause (ii) or contained in any amendment to an agreement referred to in the immediately preceding clause (i) of this Section 4.09(b) or this clause (ii); provided, however, that the encumbrances and restrictions with such transaction, which limitation is applicable only respect to the assets that Parent contained in any such refinancing agreement or amendment are no more restrictive in any material respect than the subject of those encumbrances and restrictions with respect to the Parent contained in such predecessor agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Issuer shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary toSubsidiary:
(a) to pay dividends or make any other distributions on its Capital Stock or any other interest or participation in, or measured by the profits of the Issuer or such Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of 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),Issuer;
(b) to make any loans or advances to the Borrower Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Subsidiary; or
(c) to transfer any of its property or assets to the Borrower Issuer or to any other Restricted Subsidiary (it being understood that such transfers Subsidiary. Notwithstanding the foregoing, this covenant shall not include prohibit any type of transfer described in clause (a) encumbrance or (b) above); exceptrestriction existing under or by reason of:
(i) any encumbrance or restriction (A) pursuant to an agreement the Senior Credit Facility as in effect at or entered into on the Effective DateIssue Date and as the same may be amended, including pursuant modified, restated, supplemented or refinanced from time to this Agreementtime; provided, the Public Bond Documentshowever, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such amendment, modification, restatement, supplement or other agreement or document that are permitted by this subclause (C) are no more restrictive less favorable in any material respect to the Noteholders than restrictions contained in the encumbrances and restrictions imposed by Senior Credit Facility on the ABL Credit FacilityIssue Date;
(ii) any encumbrance encumbrances or restriction with respect to a Restricted Subsidiary restrictions existing as of the Issue Date or pursuant to an agreement relating 51 52 to any Capital Stock of or agreement governing Indebtedness Incurred by such Restricted Subsidiary prior to in existence on the date Issue Date, in each case as in effect on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such dateIssue Date;
(iii) the Notes, this Indenture or any Guarantee;
(iv) any instrument governing Acquired Indebtedness, which encumbrance or restriction with respect is not applicable to a Restricted Subsidiary pursuant any Person or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(v) Refinancing Indebtedness incurred to an agreement effecting a refinancing, refunding or replacement of refinance Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or clause (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iiiiv); provided, however, that the encumbrances and restrictions contained in any such refinancing agreement are not materially no less favorable to the Lenders, taken as a whole, Noteholders than the original encumbrances and restrictions contained in such agreements (as determined in good faith by governing the Board of Directors)Indebtedness being refinanced;
(ivvi) customary nonassignment provisions in leases governing leasehold interests to the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner extent such provisions restrict the subletting, assignment or transfer of any the lease or the property or asset that is subject to a lease, license or similar contract, leased thereunder;
(Bvii) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsmortgages;
(vviii) any restriction restrictions with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an a binding agreement which has been entered into for the sale or disposition of Capital Stock capital stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction thatSubsidiary; provided, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only solely to the capital stock or assets of such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely Liens securing Indebtedness otherwise permitted to be incurred by Section 4.15 that limit the right of the Issuer or any of its Restricted Subsidiaries to dispose of the assets subject to such joint venture, in each case entered into in the ordinary course of business;Lien; and
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (Susquehanna Media Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any 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 Borrower or any other Restricted Subsidiary Borrower, (it being understood that the priority of 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),
(bii) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(ciii) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above)Subsidiary; except:
(ia) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Closing Date, including pursuant to this Agreement and the Senior Credit Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit FacilityIndenture;
(iib) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock Indebtedness issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of the Borrower or was acquired by the Borrower) and outstanding on such date;
(iiic) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancingrefunding, refunding replacement or replacement refinancing of Indebtedness Incurred issued pursuant to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses (ia) or (iib) or this clause (iiic); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or amendment are not materially no less favorable in any material respect to the Lenders, taken as a whole, Lenders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements referred to in clauses (as determined in good faith by a) and (b) on the Board of Directors)Closing Date or the date such Restricted Subsidiary became a Restricted Subsidiary, whichever is applicable;
(ivd) in the case of clause (c) of this Section 6.03above, any encumbrance or restriction (A1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue or the assignment or transfer of any transfer ofsuch lease, agreement to transferlicense or other contract, option (2) contained in mortgages, pledges or right with respect to, any property or assets other security agreements permitted under this Agreement securing Indebtedness of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements or the Equity Interests in the owner (3) pursuant to customary provisions restricting dispositions of such real property or interests set forth in any Subsidiary reciprocal easement agreements of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsany Restricted Subsidiary;
(ve) purchase money obligations for property acquired in the ordinary course of business that impose encumbrances or restrictions of the nature described in clause (c) above on the property so acquired;
(f) 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
(vig) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith arising or existing by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation reason of applicable law, regulation or order.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Brown Tom Inc /De)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary Company (it being understood that the priority of any Preferred Stock in receiving dividends, dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Capital Stock shall be deemed to not be deemed a restriction on the ability to pay dividends or make other distributions on Capital Stock),
, (b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(i1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this the Credit Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.in
Appears in 1 contract
Sources: Indenture (Us Concrete Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of 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),Borrower;
(b2) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Borrower; or
(c3) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Borrower, except:
(iA) any encumbrance or restriction (A) pursuant to applicable law, rule, regulation or order or an agreement in effect at or entered into on the Effective Restatement Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Borrower) and outstanding on such date;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (iSection 6.03(3)(A) or (iiSection 6.03(3)(B) or this clause (iiiSection 6.03(3)(C) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses (iSection 6.03(3)(A) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.or
Appears in 1 contract
Sources: First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will notNeither the Company nor the Issuer shall, and will not nor shall the Company permit any other 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) 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 Borrower Company or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsIssuer, 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),
(b) to make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans Issuer or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) to transfer any of its property or assets to the Borrower Company or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); the Issuer, except:
: (i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
; (iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i) or (ii) of this covenant or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses clause (i) or (ii) of this covenant or this clause (iii); providedPROVIDED, howeverHOWEVER, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially no less favorable to the Lenders, taken as a whole, Noteholders than the original encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements (as determined in good faith by the Board of Directors);
agreements; (iv) any such encumbrance or restriction consisting of customary non-assignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder; (v) in the case of clause (c) of this Section 6.03above, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or mortgages; (vi) any restriction with respect to the Equity Interests in Guaranteed Notes, any defeasance trust or the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner Debt Service Reserve Account; and (D) ordinary course provisions restricting the assignability of contracts;
(vvii) 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;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (Pt Polytama Propindo)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or 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 Borrower or any other Restricted Subsidiary (it being understood that the priority of 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),Subsidiary;
(b2) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Subsidiary; or
(c3) transfer any of its property or assets Property to the Borrower or any other Restricted Subsidiary Subsidiary.
(it being understood that such transfers shall b) The foregoing limitations will not include any type apply:
(1) with respect to clauses (1), (2) and (3) of transfer described in clause (a) or (b) above); except:, to restrictions
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or ,
(B) relating to Debt of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to and existing at the date on which such Restricted Subsidiary was acquired by the Borrower or time it became a Restricted Subsidiary (other than Capital Stock issued if such restriction was not created in connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;,
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified any Receivables Transaction Facility that, in the good faith determination of the Board of DirectorsDirectors of the Borrower, are necessary or advisable to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;Facility, or
(viiD) any customary provisions that result from the Refinancing of Debt incurred pursuant to an agreement referred to in leasesclause (1)(A) or (B) above or in clause (2)(A) or (B) below, subleases or licenses provided such restriction is no less favorable to the 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 other agreements entered into 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 Subsidiary, so long as such restriction relates solely to the Property so acquired and was not created in the ordinary course connection with or in anticipation of business;such acquisition,
(viiiC) any encumbrance resulting from customary provisions restricting subletting or restriction pursuant to (x) other Indebtedness assignment of leases or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture other agreements and other similar that restrict assignment of such agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;or rights thereunder or
(xD) customary provisions customarily contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with limiting the transfer of such transaction, which limitation is applicable only to Property pending the assets that are the subject closing of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawsuch sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability legal right of any Restricted Subsidiary to:
(a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness or other obligations owed obligation owed, to the Borrower Company or any other Restricted Subsidiary (it being understood that the priority of 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),Subsidiary;
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Subsidiary; or
(c) transfer any of its property or assets Property to the Borrower Company or any other Restricted Subsidiary Subsidiary. Such limitation will not apply:
(it being understood that such transfers shall not include any type of transfer described in clause 1) with respect to clauses (a) or ), (b) aboveand (c); except, to encumbrances and restrictions:
(iA) in agreements and instruments (including any Bank Credit Facilities) as in effect on the Issue Date,
(B) relating to Indebtedness of a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such encumbrance or restriction (A) pursuant to an agreement was not created in effect at or entered into on the Effective Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock anticipation of or Indebtedness Incurred by such Restricted Subsidiary prior to in connection with the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;Subsidiary, or
(iiiC) any that result from the renewal, refinancing, extension or amendment of an agreement that is the subject of clause (c)(1)(A) or (B) above or clause (c)(2)(A) or (B) below, provided that such encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are is not materially less favorable to the Lenders, taken as a whole, Holders of 7⅛% Notes than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance those under or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary pursuant to the extent such encumbrance agreement so renewed, refinanced, extended or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction thatamended, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the BorrowerCompany and,
(2) or with respect to clause (yc) other Indebtedness or Preferred Stock of a Subsidiary Guarantoronly, in each case to:
(A) restrictions pursuant to Liens permitted to be Incurred pursuant to and secured without also securing the provisions of 7⅛% Notes under Section 6.13;
(ix) customary provisions in joint venture agreements 4.10 and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in that limit the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions right of the type described in clause (c) above on debtor to dispose of the property Property subject to such lease, license, contract or other similar agreement;Lien,
(xiB) restrictions on cash any encumbrance or other deposits restriction applicable to Property at the time it is acquired by the Company or net worth imposed by customers under contracts entered into a Restricted Subsidiary, so long as such encumbrance or restriction relates solely to the Property so acquired and was not created in the ordinary course anticipation of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;acquisition,
(xiiiC) customary provisions restricting subletting or assignment of any agreement entered into leases and customary provisions in the ordinary course other agreements that restrict assignment of business; such agreements or rights thereunder, and;
(xivD) any restriction created by operation customary restrictions contained in asset sale agreements limiting the transfer of applicable lawsuch assets pending the closing of such sale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will shall not, and will shall not permit any Restricted Subsidiary to, 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:
(a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock Stock, or pay any Indebtedness or other obligations owed obligation owed, to the Borrower or any other Restricted Subsidiary (it being understood that the priority of 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)Subsidiary,
(b) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) Subsidiary, or
(c) transfer any of its property or assets Property to the Borrower or any other Restricted Subsidiary Subsidiary. The foregoing limitations will not apply:
(it being understood that such transfers shall not include any type of transfer described in clause 1) with respect to clauses (a) or ), (b) aboveand (c); except, to restrictions:
(i) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Closing Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or ,
(B) relating to Indebtedness of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to and existing at the date on which such Restricted Subsidiary was acquired by the Borrower or time it became a Restricted Subsidiary (other than Capital Stock issued if such restriction was not created in connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such that Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;,
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement that result from the Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses clause (i1)(A) or (iiB) above or this in clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i2)(A) or (iiB) or this clause (iii); providedbelow, however, provided that the encumbrances and restrictions contained in any such agreement are not materially restriction is no less favorable to the LendersLenders than those under the agreement evidencing the Indebtedness so Refinanced,
(D) resulting from the Incurrence of any Permitted Indebtedness described in clause (b) of the second paragraph of Section 7.01, taken as a whole, provided that the restriction is no less favorable to the Lenders than the original encumbrances and restrictions of the same type contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;or
(vE) any restriction with respect to constituting Standard Securitization Undertakings relating solely to, and restricting only the rights of, a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created Receivables Entity in connection with a Qualified Receivables Transaction thatTransaction, in and
(2) with respect to clause (c) only, to restrictions:
(A) relating to Indebtedness that is permitted to be Incurred and secured without also securing the good faith determination Loans pursuant to Sections 7.01 and 7.03 that limit the right of the Board debtor to dispose of Directors, are necessary to effect such Qualified Receivables Transaction; provided the Property securing that such restrictions apply only to such Receivables Entity;Indebtedness,
(viiB) any customary provisions in leases, subleases or licenses and other agreements entered into encumbering Property at the time the Property was acquired by the Borrower or any Restricted Subsidiary Subsidiary, so long as the restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of the ordinary course of business;acquisition,
(viiiC) any encumbrance resulting from customary provisions restricting subletting or restriction pursuant to (x) other Indebtedness assignment of leases or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint ventureincluding, in each case without limitation, intellectual property licenses entered into in the ordinary course of business;) that restrict assignment of the agreements or rights thereunder, or
(xD) which are customary provisions restrictions contained in leases, licenses, contracts and other similar asset sale agreements entered into in limiting the ordinary course transfer of business to Property pending the extent such obligations impose restrictions closing of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawsale.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends, dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock),
(b2) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary 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 Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a1) or (2) of this Section 7.09(a)).
(b) above); exceptThe restrictions in Section 7.09(a) hereof will not prohibit:
(i1) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective DateClosing Date and (to the extent not otherwise permitted by this Section 7.09) listed on Schedule 7.09 hereto, including pursuant to this Agreement, the Public Bond Guaranties, the Collateral Documents, the Subsidiary Guarantees, Intercreditor Agreement and the ABL Credit Facility, the Securitization Facility or (Band related documentation) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any effect on such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facilitydate;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary Person pursuant to an agreement relating to any Capital Stock of 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 Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by by, merged into or consolidated with the BorrowerBorrower 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 Borrower 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 Agreement;
(iii3) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancingrefunding, refunding replacement or replacement refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i1) or (ii2) of this Section 7.09(b) or this clause (iiiSection 7.09(b)(3) or contained in any amendment, restatement, modification, renewal, supplement, rewritingrefunding, replacement or refinancing of an agreement referred to in the preceding clauses (i1) or (ii2) this Section 7.09(b) or this clause (iiiSection 7.09(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are not materially no less favorable to the Lendersin any material respect, taken as a whole, to the Lenders than the original encumbrances and restrictions contained in such agreements referred to in clauses (as determined in good faith by 1) or (2) of this Section 7.09(b) on the Board of Directors)Closing Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(iv4) in the case of clause (c3) of this Section 6.037.09(a), any encumbrance Liens permitted to be incurred under the provisions of Section 7.01;
(a) purchase money obligations or restriction mortgage financings for property acquired in the ordinary course of business and (Ab) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by Capitalized Lease Obligations permitted under this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance each case, that impose encumbrances or restrictions restrict the transfer of the nature described in clause (3) of Section 7.09(a) on the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contractsso acquired;
(v6) 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 are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii7) any customary provisions relating to the disposition or distribution of assets or property in leasesjoint venture agreements, subleases or licenses asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;
(8) net worth provisions in leases and other agreements and provisions restricting cash or other deposits in agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii9) encumbrances or restrictions arising or existing by reason of applicable law or any encumbrance applicable rule, regulation or restriction pursuant to order;
(x10) encumbrances or restrictions contained in indentures or debt instruments or other Indebtedness debt arrangements Incurred or Preferred Stock of issued by Subsidiary Guarantors in accordance with Section 7.03, that are not more restrictive, taken as a whole, than those applicable to the Borrower in either this Agreement or the ABL Facility on the Closing Date (which results in encumbrances or restrictions comparable to those applicable to the Borrower at a Restricted SubsidiarySubsidiary level);
(11) encumbrances or restrictions contained in indentures or other debt instruments or debt arrangements Incurred or Preferred Stock issued by Restricted Subsidiaries that are not Subsidiary Guarantors subsequent to the Closing Date pursuant to clauses (5), (12), (13) or (14) of Section 7.03(b); provided that such encumbrances and restrictions contained in any agreement or restrictions instrument will not materially affect the Borrower's ’s ability to make anticipated principal and or interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13);
(ix12) encumbrances or restrictions contained in customary non-assignment provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licensescontracts, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract licenses or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv13) 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 or assets of the Borrower or any restriction created by operation of applicable lawRestricted Subsidiary thereof in any manner material to the Borrower or any Restricted Subsidiary.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsCompany, 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),
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(i1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreementincluding, without limitation, the Public Bond Documents, Credit Agreement (as in effect on the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit FacilityIssue Date);
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
(iiiC) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement Refinancing of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (iSection 4.05(1)(A) or (iiB) or this clause (iiiC) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of amendment to an agreement referred to in the preceding clauses (iSection 4.05(1)(A) or (iiB) or this clause (iiiC); providedPROVIDED, howeverHOWEVER, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially no 42 more restrictive than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements (as determined by the Company in good faith);
(D) any encumbrance or restriction contained in the Subordination Agreement or the terms of the Intercompany Loan or any future subordination agreement or intercompany loan that (i) is substantially the same as those contained in the Subordination Agreement and the Intercompany Loan and (ii) relate to loans made by the Company to a Wholly Owned Subsidiary of the proceeds of an equity or debt financing permitted under the Indenture;
(E) any encumbrance or restriction included in any instrument governing Eligible Indebtedness of a Restricted Subsidiary permitted to be Incurred pursuant to Section 4.03; PROVIDED, HOWEVER, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such instrument are no less favorable to the Lenders, taken as a whole, Holders of the Securities than the original encumbrances and restrictions contained included in such agreements the Credit Agreement on the Issue Date (as determined by the Company in good faith by the Board of Directorsfaith);; and
(iv2) in the case of with respect to clause (c) of this Section 6.03, only,
(A) any such encumbrance or restriction (A) that restricts consisting of customary nonassignment provisions in a customary manner leases governing leasehold interests to the subletting, assignment or extent such provisions restrict the transfer of any the lease or the property or asset that is subject to a lease, license or similar contract, leased thereunder;
(B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) restrictions contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;mortgages; and
(vC) 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;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.
Appears in 1 contract
Sources: Indenture (Enodis PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its Capital Stock to the Borrower or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood Borrower; provided that the priority of any Preferred Stock in receiving dividends, or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on of the ability to make distributions on of Capital Stock),;
(b) make any loans or advances to the Borrower or any other Restricted Subsidiary (it being understood Borrower; provided that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on of the ability to make loans or advances) ; or
(c) transfer any of its property Property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause Borrower, except with respect to clauses (a) or ), (b) and (c) above); except:
(i1) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective DateDate including, including pursuant to this for the avoidance of doubt, the First Lien RBL Credit Agreement, the Public Bond Senior Secured Notes Documents, the Subsidiary Guarantees, Junior Lien Credit Agreement and the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit FacilityExisting Unsecured Notes;
(ii2) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to the date Subsidiary, or otherwise binding on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Capital Stock issued or Indebtedness Incurred as consideration inSubsidiary, or to provide all or any portion of the funds or credit support utilized to consummate121 EXCO Resources, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction that, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ix) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.Inc.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Company shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsCompany, 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),
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(i1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction (A) pursuant to to, or as required by, an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
(iiiC) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(1)(A) or 4.05(1)(B) or this Section 4.05(1)(C) or contained in any amendment to an agreement referred to in Section 4.05(1)(A) or 4.05(1)(B) or this Section 4.05(1)(C); PROVIDED, HOWEVER, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Securityholders than encumbrances and restrictions, taken as a whole, with respect to such Restricted Subsidiary contained in such predecessor agreements;
(D) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the 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;
(viE) restrictions created in connection with a Qualified Receivables Transaction thatany restriction arising under applicable law, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entityregulation or order;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viiiF) any encumbrance or restriction pursuant to (x) other contained in the terms of any Indebtedness of the Company or Preferred Stock of a Restricted Subsidiaryany Subsidiary Guarantor; provided PROVIDED, HOWEVER, that such encumbrances or restrictions will not materially affect restrictions, taken as a whole, are no more restrictive in the Borrower's ability to make anticipated principal and interest payments on the Loans (aggregate than those contained in this Indenture, as determined in good faith by the Company's Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary GuarantorDirectors, in each case permitted to whose determination shall be Incurred pursuant to the provisions of Section 6.13conclusive;
(ixG) customary provisions any encumbrance or restriction contained in joint venture agreements and other similar agreements any agreement or instrument governing Senior Indebtedness (including stockholder agreementsthe Credit Agreement) relating solely to not Incurred in violation of this Indenture; PROVIDED, HOWEVER, that such joint ventureencumbrances or restrictions, in each case entered into taken as a whole, are no more restrictive in the ordinary course aggregate than those contained in the Credit Agreement, as determined in good faith by the Company's Board of businessDirectors, whose determination shall be conclusive;
(xH) customary provisions with respect to any Restricted Subsidiary, any encumbrance or restriction contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment terms of any Indebtedness, or any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable law.pursuant to which such Indebtedness was issued, if:
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower will Corporation shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability right 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 Borrower Corporation or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsSubsidiary, 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),
(b) make any loans or advances to the Borrower Corporation or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
Subsidiary, (c) transfer any of its property or assets Property to the Borrower Corporation or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (bd) above); except:
guarantee any Debt of the Corporation or any other Restricted Subsidiary. The foregoing limitations will not apply (i) any encumbrance or restriction with respect to clauses (a), (b), (c) and (d), to restrictions (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) relating to Debt of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary prior to and existing at the date on which such Restricted Subsidiary was acquired by the Borrower or time it became a Restricted Subsidiary (other than Capital Stock issued if such restriction was not created in connection with or Indebtedness Incurred as consideration in, or to provide all or any portion in anticipation of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCorporation, (C) and outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement which result from the Refinancing of Indebtedness Debt Incurred pursuant to an agreement referred to in the immediately preceding clauses clause (ii)(A) or (iiB) above or this in clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (iii)(A) or (iiB) or this clause (iii); providedbelow, however, provided that the encumbrances and restrictions contained in any such agreement are not materially restriction is no less favorable to the Lenders, taken as a whole, Holders of 2009 Series Bonds than those under the original encumbrances and restrictions contained in such agreements (as determined in good faith by agreement evidencing the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contractDebt so Refinanced, (BD) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower on Sales Finance or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any other bankruptcy- remote special-purpose Subsidiary of the Borrower Corporation that owns a direct purchases or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (sells accounts receivable or any of its property or assets) imposed inventory pursuant to an agreement entered into for the sale Credit Facilities or disposition of Capital Stock (E) arising or assets of such Restricted Subsidiary (or the property or assets that are subject agreed to such restriction) pending the closing of such sale or disposition;
(vi) restrictions created in connection with a Qualified Receivables Transaction thatjoint venture agreement, in the good faith determination of the Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(vii) any customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower Corporation or any a Restricted Subsidiary in the ordinary course of business;
business that do not (viii) any as determined by the Corporation and certified in a resolution of the Board of Directors or a certificate of the chief financial or chief accounting officer of the Corporation delivered to the Trustee prior to or promptly following such encumbrance or restriction pursuant becoming effective), individually or in the aggregate, (1) detract from the value of property or assets of the Corporation or any Restricted Subsidiary in any manner material to the Corporation or any Restricted Subsidiary or (x2) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially adversely affect the BorrowerCorporation's ability to make anticipated principal and or interest payments on the Loans 2009 Series Bonds and (as determined in good faith by the Board of Directors of the Borrowerii) or with respect to clause (yc) other Indebtedness or Preferred Stock of a Subsidiary Guarantoronly, in each case to restrictions (A) relating to Debt that is permitted to be Incurred and secured pursuant to Section 4.05 and Section 4.12 of the Original Indenture 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 Corporation or any Restricted Subsidiary, so long as such restriction relates solely to the Property so acquired and was not created in connection with or in anticipation of such acquisition, (C) resulting from customary provisions restricting subletting or assignment of Section 6.13;
(ix) leases or customary provisions in joint venture other agreements and other similar that restrict assignment of such agreements or rights thereunder or (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(xD) customary provisions restrictions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with limiting the transfer of such transaction, which limitation is applicable only to Property pending the assets that are the subject closing of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and;
(xiv) any restriction created by operation of applicable lawsuch sale.
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Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower Company will not, and will not permit any Restricted Subsidiary that is not a Subsidiary Guarantor to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower or any other Restricted Subsidiary (it being understood that the priority of Preferred Stock in receiving dividendsCompany, 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),
(b) make any loans or advances to the Borrower Company or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances) or
(c) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above); Company, except:
(i1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction (A) pursuant to an agreement in effect at or entered into on the Effective Issue Date, including pursuant to this Agreement, the Public Bond Documents, the Subsidiary Guarantees, the ABL Credit Facility, the Securitization Facility or (B) of the type imposed by the Prior European Facility or (C) pursuant to any agreement or document governing or evidencing any Indebtedness incurred pursuant to the permissions of Section 6.13; provided that the encumbrances and restrictions contained in any such agreement or document that are permitted by this subclause (C) are no more restrictive than the encumbrances and restrictions imposed by the ABL Credit Facility;
(iiB) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Capital Stock of or Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary Company (other than Capital Stock issued or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the BorrowerCompany) and outstanding on such date;
(iiiC) any encumbrance or restriction pursuant to an agreement 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 encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Securityholders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;
(D) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refinancing, refunding or replacement of Indebtedness Incurred pursuant to an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, rewriting, replacement or refinancing of an agreement referred to in the preceding clauses (i) or (ii) or this clause (iii); provided, however, that the encumbrances and restrictions contained in any such agreement are not materially less favorable to the Lenders, taken as a whole, than the original encumbrances and restrictions contained in such agreements (as determined in good faith by the Board of Directors);
(iv) in the case of clause (c) of this Section 6.03, any encumbrance or restriction (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (C) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restrictions restrict the transfer of the property subject to such security agreements or the Equity Interests in the owner of such property or in any Subsidiary of the Borrower that owns a direct or indirect Equity Interest in such owner and (D) ordinary course provisions restricting the assignability of contracts;
(v) any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the 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;
(viE) 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 issued;
(F) restrictions created or conditions, governing any Indebtedness incurred in connection with a Qualified Permitted Securitizations which was permitted under Section 4.03(b)(13) if such restrictions or conditions apply only to the Receivables Transaction thatand the Related Assets that are the subject of the Permitted Securitization, and restrictions or conditions imposed on any SPE Subsidiary in connection with any Permitted Securitization;
(G) provisions limiting the disposition or distribution of assets or property or transfer of Capital Stock in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, limited liability company organizational documents, and other similar agreements entered into in the good faith determination ordinary course of business, consistent with past practice or with the approval of the Company's Board of Directors, are necessary to effect such Qualified Receivables Transaction; provided that such restrictions apply which limitation is applicable only to the assets, property or Capital Stock that are the subject of such Receivables Entityagreements;
(viiH) any customary provisions in leasesrestrictions on cash, subleases Temporary Cash Investment or licenses and other agreements deposits or net worth imposed by customers or lessors under contracts or leases entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(viii) any encumbrance or restriction pursuant to (x) other Indebtedness or Preferred Stock of a Restricted Subsidiary; provided that such encumbrances or restrictions will not materially affect the Borrower's ability to make anticipated principal and interest payments on the Loans (as determined in good faith by the Board of Directors of the Borrower) or (y) other Indebtedness or Preferred Stock of a Subsidiary Guarantor, in each case permitted to be Incurred pursuant to the provisions of Section 6.13;
(ixI) customary provisions in joint venture agreements and other similar agreements (including stockholder agreements) relating solely to such joint venture, in each case entered into in the ordinary course of business;
(x) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, license, contract or other similar agreement;
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in operating or other similar agreements, asset sale agreements, and stock sale agreements entered into in connection with such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and
(J) any restriction arising under applicable law, regulation or order.
(2) with respect to clause (c) only,
(A) any encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(xivB) any encumbrance or restriction created contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages;
(C) non-assignment provisions or subletting restrictions in contracts, leases and licenses entered into in the ordinary course of business; and
(D) encumbrances on property that exist at the time the property was acquired by operation the Company or a Restricted Subsidiary, provided such encumbrances were not put in place in anticipation of applicable lawsuch acquisition; and
(3) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in paragraphs (1) and (2) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
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