Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to: (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary; (ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or (iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction. (b) Section 7.08(a) shall not prohibit: (i) any encumbrance or restriction pursuant to any credit facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Date; (ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees; (iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order; (iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company; (v) any encumbrance or restriction: (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary; (vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired; (vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; (viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments; (ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority; (x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice; (xi) any encumbrance or restriction pursuant to Hedging Obligations; (xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries; (xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility; (xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument; (xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or (xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 8 contracts
Samples: Credit Agreement (Frontier Communications Parent, Inc.), Credit Agreement (Frontier Communications Parent, Inc.), Credit Agreement (Frontier Communications Parent, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Company, (ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; Company (provided that (x) the dividend or liquidation priority between classes of Capital Stock, or subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit), except any encumbrance or restriction:
(i1) any encumbrance or restriction pursuant to any credit facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date, including, without limitation, this Indenture, the Notes, the Senior Credit Facilities or any other Credit Facility;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (other than Capital Stock or except to the extent that such Indebtedness Incurred as consideration inwas incurred to finance, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with with, such transaction) and outstanding on such dateacquisition, merger or consolidation); provided that, that for the purposes of this clause (iv2), if another a Person other than the Company is the Successor CompanyCompany with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Borrower Company or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the such Successor Company;
(v3) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any encumbrance amendment, supplement or restriction:other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement;
contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict restricting the transfer or encumbrance of the property or assets subject to such mortgagesthereto, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
, (viE) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, (I) pursuant to Hedging Obligations or (J) in connection with or relating to any Vehicle Rental Concession Right or (K) that is included in the constating documents of a Special Purpose Entity;
(vii5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii6) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(x7) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof407 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders of the Notes than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Company), or (bii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (b), either (ax) the Borrower Company determines at the time of entry into such agreement or instrument in good faith that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary, (C) of or instrument;
(xv) any encumbrance relating to Indebtedness of or restriction existing a Financing Disposition by reason or to or in favor of any Lien permitted under Section 7.01 hereof; or
Special Purpose Entity or (xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xvD) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) a financing arrangement of this Section 7.08(b) or this clause (xvi); provided, however, that a Special Purpose Entity organized outside the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIUnited States.
Appears in 5 contracts
Samples: Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on or prior to the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents and Notes or the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or orderorder or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquiredsubject property;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness Indebtedness, permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (b), where either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 5 contracts
Samples: Indenture (Carvana Co.), Indenture (Carvana Co.), Indenture (Carvana Co.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or (b) any other agreement or instrument, in each case, instrument in effect at or entered into on or prior to the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Notes, the Notes Collateral Documents Documents, any Intercreditor Agreement and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or orderorder or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practicebusiness; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquiredsubject property;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing Facility, Floor Plan Facility or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility, Floor Plan Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness Indebtedness, permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (b), where either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6;
(16) any encumbrance or restriction pursuant to any Floor Plan Facility customary for inventory and floor plan financing in the automobile industry; or
(xvi17) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv16) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv16) of this Section 7.08(b3.4(b) or this clause (xvi17); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 4 contracts
Samples: Indenture (Carvana Co.), Indenture (Carvana Co.), Indenture (Carvana Co.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility (a) the Senior Facilities Agreement, (b) the Encore Private Placement Notes Agreement, or (c) any other agreement or instrumentinstrument (including the Existing Secured Notes Indentures the Existing Unsecured Notes Indentures), in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to the Company or any Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company);
(4) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquiredacquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vii6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii7) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents debt purchase agreements and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(ix) 8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, the terms of any license, authorization, concession or permit or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging ObligationsAgreements;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv11) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof4.09 if (a) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Senior Facilities Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) as is customary in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause Company)or (b), either (a) the Borrower Company determines at the time of entry into such agreement or instrument Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentNotes;
(xv12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Board of Directors of the Company, are necessary or advisable;
(13) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof; or4.12;
(xvi14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to an the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or instrument effecting a refinancing of Indebtedness Incurred pursuant to, replaces the agreements containing the encumbrances or that otherwise refinances, an agreement or instrument referred to in clauses (irestrictions under Section 4.11(b) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, provided that the encumbrances terms and restrictions with respect to such Restricted Subsidiary contained in conditions of any such agreement encumbrances or instrument are restrictions are, in the good faith judgment of the Board of Directors of the Company, no less favorable more restrictive in any material respect than those under or pursuant to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement agreement so extended, renewed, refinanced or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIreplaced.
Appears in 3 contracts
Samples: Indenture (Encore Capital Group Inc), Indenture (Encore Capital Group Inc), Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNote Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Issuer or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Issuer or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerIssuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of clause (bii), either (aA) the Borrower Issuer determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 3 contracts
Samples: Indenture (Frontier Communications Corp), Indenture (Frontier Communications Corp), Indenture (Frontier Communications Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNote Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Issuer or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Issuer or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerIssuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of clause (bii), either (aA) the Borrower Issuer determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 3 contracts
Samples: Indenture (Frontier Communications Parent, Inc.), Indenture (Frontier Communications Parent, Inc.), Indenture (Frontier Communications Parent, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; ;
(b) provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(bc) The provisions of Section 7.08(a4.08(a) shall hereof will not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility (including the Credit Agreement and any ABL Credit Facility) or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date (or otherwise required as of the Issue Date);
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Security Documents, the Notes and the Note Guarantees;
(iii3) encumbrances or restrictions arising or existing by reason of applicable law or any encumbrance or restriction pursuant to applicable law, rule, regulation or order, or required by any regulatory authority;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi10) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv11) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 4.09 hereof if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained in the Loan Documents or Credit Agreements, together with the First-Priority Senior Secured Note Documents security documentation associated therewith as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIssue Date;
(xv12) any encumbrance or restriction existing by reason of any Lien lien permitted under by Section 7.01 4.12 hereof; or
(xvi13) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, restates, replaces, restructures or refinances, an agreement or instrument referred to in clauses (i1) to (xv12) of this Section 7.08(b4.08(b) or this clause (xvi13) (an “Initial Agreement”) or contained in any amendment, supplement supplement, extension, renewal, restatement, replacement, restructuring or other modification to an agreement referred to in clauses (i1) to (xv12) of this Section 7.08(b4.08(b) or this clause (xvi13); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding .
(d) For purposes of determining compliance with this Section 4.08, (i) the priority of any other provision Preferred Stock in receiving dividends or liquidating distributions prior to the contrary, the consummation of the Transactions dividends or liquidating distributions on Capital Stock shall not be prohibited deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Company or a Restricted Subsidiary of the Company of other Indebtedness Incurred by Article VIIthe Company or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 2 contracts
Samples: Indenture (Urban One, Inc.), Indenture (Radio One, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Borrower, (ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; (provided that (x) neither the Transactions, nor dividend or liquidation priority between classes of Capital Stock, nor subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not obligation, will be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit), except any encumbrance or restriction:
(ia) any encumbrance or restriction pursuant to any credit facility an agreement, arrangement or any other agreement or instrument, in each case, instrument in effect at or entered into on the Closing Effective Date, any Credit Facility, and, on and after the execution and delivery thereof, any Intercreditor Agreement, any Permitted Debt Exchange Notes (and any related documents) and any Additional Obligations Documents;
(iib) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration infrom such Person, or to provide all or any portion of the funds utilized to consummate, the other transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was Incurred to finance, or otherwise in connection with with, such acquisition, merger, consolidation or transaction) and outstanding on such date); provided that, that for the purposes of this clause (ivsubsection 7.9(b), if another a Person other than the Borrower is the Successor CompanyCompany with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Borrower or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the such Successor Company;
(vc) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any encumbrance agreement or restriction:instrument referred to in subsections 7.9(a) or (b) above or this subsection 7.9(c) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Lenders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Borrower, which determination shall be conclusive);
(Ai) pursuant to any agreement or instrument that restricts in a customary manner (as determined in good faith by the Borrower, which determination shall be conclusive) the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset that is subject thereto, (ii) by virtue of any transfer of, agreement to a leasetransfer, license option or similar contract or agreementright with respect to, or Lien on, any property or assets of the assignment Borrower or transfer of any leaseRestricted Subsidiary not otherwise prohibited by this Agreement, license or other contract or agreement;
(Biii) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness or other obligations of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict restricting the transfer or encumbrance of the property or assets subject to such mortgagesthereto, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Div) pursuant to customary provisions (as determined in good faith by the Borrower, which determination shall be conclusive) restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
, (viv) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property or assets so acquired, (vi) on cash or other deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (vii) pursuant to customary provisions (as determined in good faith by the Borrower, which determination shall be conclusive) contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries, (viii) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Borrower or any Restricted Subsidiary in any manner material to the Borrower or such Restricted Subsidiary, (ix) pursuant to Hedging Obligations or Bank Products Obligations or (x) with respect to which the Borrower determines in good faith, which determination shall be conclusive, that such encumbrance or restriction will not materially affect the Borrower’s ability to make principal or interest payments on the Loans;
(viie) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of (A) property or assets of such Restricted Subsidiary or (B) all or substantially all of the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) Subsidiary, in each case, pending the closing of such sale or disposition;
(viiif) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;
(x) authority having jurisdiction over the Borrower or any encumbrance Restricted Subsidiary or restriction on cash any of their businesses, including any such law, rule, regulation, order or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Qualified Securitization Financing Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;Home Warranty Subsidiary; or
(xivg) any encumbrance or restriction arising pursuant to an agreement or instrument (i) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Effective Date pursuant to the provisions of Section 7.03 hereofsubsection 7.1, (A) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Borrower, which determination shall be conclusive), or (bB) if such encumbrance or restriction is not materially more disadvantageous to the Lenders than is customary in comparable financings (as determined in good faith by the Borrower, which determination shall be conclusive) and where, in the case of clause (b), either (ax) the Borrower determines at the time of entry into such agreement or instrument in good faith, which determination shall be conclusive, that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the Borrower’s ability to make principal or interest payments on the Secured Obligations Loans or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement Indebtedness, (ii) relating to any sale of receivables by or instrument;
Indebtedness of a Foreign Subsidiary or (xviii) any encumbrance relating to Indebtedness of or restriction existing a Financing Disposition by reason or to or in favor of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIISpecial Purpose Entity.
Appears in 2 contracts
Samples: Credit Agreement (Frontdoor, Inc.), Credit Agreement (Servicemaster Global Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, (ii) the Existing Notes, including any Guarantee thereof or (iii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents ABL and the Existing Notes Indentures, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bclause(ii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 2 contracts
Samples: Indenture (Builders FirstSource, Inc.), Indenture (Builders FirstSource, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall From and after the Closing Date, the Company will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
Subsidiary (ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(y2) make any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such an encumbrance transfers shall not include any type of transfer described in clause (1) or restriction(2) of this Section 4.12(a)).
(b) Section 7.08(a4.12(a) shall will not prohibitprohibit encumbrances or restrictions existing under or by reason of:
(i1) any encumbrance contractual encumbrances or restriction pursuant to any credit facility or any other agreement or instrument, in each case, restrictions in effect at or entered into on the Closing Date, including pursuant to (i) the Senior Secured Credit Facilities and related documentation and (ii) Hedging Obligations and other agreements or instruments (whether or not related to the Senior Secured Credit Facilities);
(ii2) this Indenture, the Notes and the Note Guarantees;
(3) any agreement or other instrument of a Person acquired by the Company or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired (including after-acquired property);
(4) any encumbrance or restriction pursuant to this Agreementany amendment, the Collateral Documents and the Guarantees;
(iii) any encumbrance restatement, modification, renewal, supplement, refunding, replacement or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to refinancing of an agreement referred to in this paragraph; provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or instrument refinancings are, in the good faith judgment of the Company, not materially more restrictive, taken as a Person whole, than the encumbrances and restrictions contained in the agreements referred to in this paragraph on the Closing Date or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(5) in the case of clause (3) of Section 4.12(a), Liens permitted to be Incurred under Section 4.10 that limit the right of the debtor to dispose of the assets subject to such Liens;
(6) agreements in respect of property acquired in the ordinary course of business or consistent with past practice and Capitalized Lease Obligations permitted under this Indenture, to the extent such encumbrance or restriction is customary for such purchase money obligation or Capitalized Lease Obligation;
(7) agreements in respect of the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or a portion of the Capital Stock or assets of such Subsidiary;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers, or required by insurance, surety or bonding companies;
(9) any customary provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries, organizational documents, equityholder agreements and other similar agreements;
(10) any customary provisions (including anti-assignment, net worth and similar provisions) in leases, subleases or licenses and other agreements entered into by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary Subsidiary;
(11) encumbrances or entered into in contemplation restrictions arising or existing by reason of applicable law or in connection any applicable rule, regulation or order, or required by any regulatory authority;
(12) any Purchase Money Note or other Indebtedness or contractual requirements Incurred with such transaction) and outstanding on such date; provided respect to a Receivables Financing Transaction relating exclusively to a Receivables Entity that, for in the purposes good faith determination of this clause Senior Management, are necessary to effect such Receivables Financing Transaction; and
(iv), if another Person is the Successor Company, 13) any Subsidiary thereof or agreement or instrument of such Person governing any Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred or issued under this Indenture that contains encumbrances and other restrictions that either (x) are no more restrictive in any such Subsidiary shall be deemed acquired or assumed by the Borrower or material respect taken as a whole with respect to any Restricted Subsidiary than (i) the restrictions contained in this Indenture or the Senior Secured Credit Facilities as of the Closing Date or, in the case of any Refinancing Indebtedness, in the Indebtedness being refinanced, or (ii) those encumbrances and other restrictions that are in effect on the Closing Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Closing Date, (y) are not materially more disadvantageous, taken as a whole, to the Holders than is customary in comparable financings for similarly situated issuers or (z) will not otherwise materially impair the Issuer’s ability to make payments on the Notes when such Person becomes due, in each case in the Successor Companygood faith judgment of Senior Management;
(v14) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) pursuant to customary provisions contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) pursuant to customary provisions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi15) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Non-Guarantor Restricted Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 4.09 that impose restrictions solely on the Foreign Non-Guarantor Restricted Subsidiaries party thereto or and/or their Subsidiaries;
(xiii16) restrictions created in connection with any Qualified Securitization Financing encumbrance or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable restriction pursuant to effect such Securitization Facility or Receivables FacilityHedging Obligations;
(xiv17) any encumbrance or restriction arising pursuant to an agreement or instrument (any documents relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereofTransactions; or
(xvi18) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement restatement, modification, renewal, supplement, refunding, replacement or other modification to refinancing of an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi4.12(b); provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to good faith judgment of the Lenders Company, not materially more restrictive, taken as a whole whole, than the encumbrances and restrictions contained in the Initial Agreement agreements referred to in this Section 4.12(b) on the Closing Date or Initial Agreements to which the date such refinancing Restricted Subsidiary became a Restricted Subsidiary or amendmentwas merged into a Restricted Subsidiary, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIwhichever is applicable.
Appears in 2 contracts
Samples: Senior Notes Indenture (Neogen Corp), Senior Notes Indenture (Garden SpinCo Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary (other than the Issuer or a Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, (ii) the Existing Notes or (iii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date (or otherwise required as of the Issue Date);
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order, or required by any regulatory authority;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or such agreement or instrument was entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and or Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicepractices;
(xi10) any encumbrance or restriction pursuant to Hedging Obligations;
(xii11) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Existing Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv13) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi14) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, restates, replaces, restructures or refinances, an agreement or instrument referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14) (an “Initial Agreement”) or contained in any amendment, supplement supplement, extension, renewal, restatement, replacement, restructuring or other modification to an agreement referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no not materially less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 2 contracts
Samples: Indenture (Primo Water Corp /CN/), Indenture (Primo Water Corp /CN/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Parent Guarantor shall not, and shall not permit any Restricted Subsidiary (that is not the Company) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations Obligations owed to the Borrower Parent Guarantor or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Parent Guarantor or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Parent Guarantor or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Parent Guarantor or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(aSECTION 3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility, (b) the Senior Secured Notes or (c) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, amalgamated, consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent Guarantor or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Parent Guarantor or was merged, amalgamated, consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date, which encumbrance or restriction only applies to the Person so acquired and its Subsidiaries (or their respective property or assets) or the property or assets so acquired; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Parent Guarantor or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
(Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Parent Guarantor or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(Ciii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Parent Guarantor or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Parent Guarantor or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Parent Guarantor or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Div) pursuant to customary provisions restricting dispositions of real property Real Property interests set forth in any reciprocal easement agreements of the Borrower Parent Guarantor or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Parent Guarantor or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Swap Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 SECTION 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility[Reserved];
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) SECTION 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, the ABL Credit Agreement or the First-Priority Senior Secured Note Documents Notes Indenture, in each case, together with the security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerParent Guarantor) and where, in the case of clause (bii), either (a) the Borrower Parent Guarantor determines in good faith at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal principal, premium (if applicable) or interest payments on the Secured Obligations Notes or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereofSECTION 3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(bSECTION 3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(bSECTION 3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerParent Guarantor). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 2 contracts
Samples: Indenture (iHeartMedia, Inc.), Indenture (Broader Media, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Company, (ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; Company (provided that (x) neither the Transactions, nor dividend or liquidation priority between classes of Capital Stock, nor subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not obligation, will be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit), except any encumbrance or restriction:
(i1) any encumbrance or restriction pursuant to any credit facility an agreement, arrangement or any other agreement or instrument, in each case, instrument in effect at or entered into on the Closing Issue Date, any Credit Facility, this Indenture or the Notes;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration infrom such Person, or to provide all or any portion of the funds utilized to consummate, the other transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was Incurred to finance, or otherwise in connection with with, such acquisition, merger, consolidation or transaction) and outstanding on such date); provided that, that for the purposes of this clause (iv2), if another a Person other than the Company is the Successor CompanyCompany with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Borrower Company or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the such Successor Company;
(v3) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any encumbrance agreement or restriction:instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company, which determination shall be conclusive);
(4) (A) pursuant to any agreement or instrument that restricts in a customary manner (as determined in good faith by the Company, which determination shall be conclusive) the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset that is subject thereto, (B) by virtue of any transfer of, agreement to a leasetransfer, license option or similar contract or agreementright with respect to, or Lien on, any property or assets of the assignment Company or transfer of any leaseRestricted Subsidiary not otherwise prohibited by this Indenture, license or other contract or agreement;
(BC) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness or other obligations of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict restricting the transfer or encumbrance of the property or assets subject to such mortgagesthereto, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions (as determined in good faith by the Company, which determination shall be conclusive) restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
, (viE) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions (as determined in good faith by the Company, which determination shall be conclusive) contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, (I) pursuant to Hedging Obligations or Bank Products Obligations or (J) with respect to which the Company determines in good faith, which determination shall be conclusive, that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes;
(vii5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of (A) property or assets of such Restricted Subsidiary or (B) all or substantially all of the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) Subsidiary, in each case, pending the closing of such sale or disposition;
(viii6) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;
(x) authority having jurisdiction over the Company or any encumbrance Restricted Subsidiary or restriction on cash any of their businesses, including any such law, rule, regulation, order or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Qualified Securitization Financing Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;Home Warranty Subsidiary; or
(xiv7) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof407 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders of the Notes than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Company, which determination shall be conclusive), or (bii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the BorrowerCompany, which determination shall be conclusive) and where, in the case of clause (b), either (ax) the Borrower Company determines at the time of entry into such agreement or instrument in good faith, which determination shall be conclusive, that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement Indebtedness, (B) relating to any sale of receivables by or instrument;
Indebtedness of a Foreign Subsidiary or (xvC) any encumbrance relating to Indebtedness of or restriction existing a Financing Disposition by reason or to or in favor of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIISpecial Purpose Entity.
Appears in 2 contracts
Samples: Indenture (Frontdoor, Inc.), Indenture (Servicemaster Global Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Notes, the Security Documents and the First Lien Intercreditor Agreement, any Additional Intercreditor Agreements or the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments, including with respect to intellectual property;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations or Cash Management Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof; or3.6;
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ; or
(17) any other provision to the contrary, the consummation of the Transactions shall Restricted Payment not be prohibited by Article VIISection 3.3, including any Permitted Payment and any Permitted Investment.
Appears in 2 contracts
Samples: Indenture (Pactiv Evergreen Inc.), Indenture (Pactiv Evergreen Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Company, (ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; Company (provided that (x) the dividend or liquidation priority between classes of Capital Stock, or subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit), except any encumbrance or restriction:
(i1) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, instrument in effect at or entered into on the Closing Issue Date, any Credit Facility, this Indenture or the Notes;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (other than Capital Stock or except to the extent that such Indebtedness Incurred as consideration inwas incurred to finance, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with with, such transaction) and outstanding on such dateacquisition, merger or consolidation); provided that, that for the purposes of this clause (iv2), if another a Person other than the Company is the Successor CompanyCompany with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Borrower Company or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the such Successor Company;
(v3) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any encumbrance amendment, supplement or restriction:other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement;
contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict restricting the transfer or encumbrance of the property or assets subject to such mortgagesthereto, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
, (viE) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, (I) pursuant to Hedging Obligations or (J) in connection with or relating to any Vehicle Rental Concession Right;
(vii5) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii6) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(x7) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof407 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders of the Notes than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Company), or (bii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (b), either (ax) the Borrower Company determines at the time of entry into such agreement or instrument in good faith that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary, (C) relating to Indebtedness of or instrument;
(xv) any encumbrance a Franchise Financing Disposition by or restriction existing by reason to or in favor of any Lien permitted under Section 7.01 hereof; or
Franchisee or Franchise Special Purpose Entity or to any Franchise Lease Obligation or (xviD) relating to Indebtedness of or a Financing Disposition by or to or in favor of any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIISpecial Purpose Entity.
Appears in 2 contracts
Samples: Indenture (Hertz Global Holdings Inc), Indenture (Hertz Global Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility (including the Senior Finance Documents) or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date, including the indentures governing the Existing Secured Notes and the Existing Unsecured Notes and the agreement governing the Term Loans;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b4.08(b)(1), 4.08(b)(2) or this clause (xvi4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b4.08(b)(1), 4.08(b)(2) or this clause (xvi4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument (a) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.05 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Revolving Credit Agreement, together with the security documents associated therewith, as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of clause (ii), the consummation Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Transactions shall not be prohibited Issuers’ ability to make principal or interest payments on the Notes; or
(12) any encumbrance or restriction existing by Article VIIreason of any lien permitted under Section 4.07.
Appears in 2 contracts
Samples: Senior Indenture (NXP Semiconductors N.V.), Senior Indenture (NXP Semiconductors N.V.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Issuer or any Restricted Subsidiary;
(vi4) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii5) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii6) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instruments;
(ix7) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 8) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi9) any encumbrance or restriction pursuant to Hedging Obligations;
(xii10) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Escrow Release Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii11) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerIssuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of clause (bii), either (aA) the Borrower Issuer determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv13) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi14) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 2 contracts
Samples: Indenture (Epicor International Holdings, Inc.), Indenture (Epicor Software Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Parent Guarantor shall not, and shall not permit any Restricted Subsidiary (that is not the Company) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations Obligations owed to the Borrower Parent Guarantor or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Parent Guarantor or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Parent Guarantor or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Parent Guarantor or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(aSECTION 3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility, (b) the Senior Notes or (c) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreementthe Note Documents, the Collateral Documents and the GuaranteesIntercreditor Agreements;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, amalgamated, consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent Guarantor or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Parent Guarantor or was merged, amalgamated, consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date, which encumbrance or restriction only applies to the Person so acquired and its Subsidiaries (or their respective property or assets) or the property or assets so acquired; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Parent Guarantor or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
(Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement Indenture and the Collateral Documents or securing Indebtedness of the Borrower Parent Guarantor or a Restricted Subsidiary permitted under this Agreement Indenture and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(Ciii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Parent Guarantor or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Parent Guarantor or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Parent Guarantor or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Div) pursuant to customary provisions restricting dispositions of real property Real Property interests set forth in any reciprocal easement agreements of the Borrower Parent Guarantor or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement Indenture and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Parent Guarantor or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Swap Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 SECTION 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility[Reserved];
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) SECTION 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, the ABL Credit Agreement or the First-Priority Senior Secured Note Documents Notes Indenture, in each case, together with the security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerParent Guarantor) and where, in the case of clause (bii), either (a) the Borrower Parent Guarantor determines in good faith at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal principal, premium (if applicable) or interest payments on the Secured Obligations Notes or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereofSECTION 3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(bSECTION 3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(bSECTION 3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerParent Guarantor). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 2 contracts
Samples: Indenture (iHeartMedia, Inc.), Indenture (Broader Media Holdings, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any its Restricted Subsidiary;
Subsidiaries, (ii) make any loans or advances to the Borrower or any its Restricted Subsidiary; or
Subsidiaries or (iii) sell, lease or transfer any of its property or assets to the Borrower or any its Restricted Subsidiary; Subsidiaries (provided that (x) the dividend or liquidation priority between classes of Capital Stock, or subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit), except any encumbrance or restriction:
(ia) any encumbrance or restriction pursuant to any credit facility the Loan Documents, the ABL Loan Documents or any other agreement or instrument, in each case, instrument in effect at or entered into on the Closing DateDate and set forth on Schedule 6.03;
(iib) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (other than Capital Stock or except to the extent that such Indebtedness Incurred as consideration inwas incurred to finance, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with with, such transaction) and outstanding on such dateacquisition, merger or consolidation); provided that, that for the purposes of this clause (ivb), if another a Person other than the Borrower is the Successor Companysurviving entity with respect to such merger or consolidation, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Borrower or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the Successor Companysuch surviving entity;
(vc) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (a) or (b) of this Section 6.03 or this clause (c) (an “Initial Agreement”) or contained in any encumbrance amendment, supplement or restriction:other modification to an Initial Agreement (an “ Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Lenders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Borrower);
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement;
contract, (B) contained in mortgagesby virtue of any transfer of, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower transfer, option or right with respect to, or Lien on, any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such any Restricted Subsidiary that are subject not otherwise prohibited by this Agreement, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to such agreement, the payment rights arising thereunder or extent restricting the proceeds thereof and does not extend to any other asset or property transfer of the Borrower property or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
, (viE) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Borrower or any Restricted Subsidiary in any manner material to the Borrower or such Restricted Subsidiary, or (I) pursuant to Hedging Agreements;
(viie) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viiif) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable Law, rule, regulation or order, or required by any regulatory authority;authority having jurisdiction over the Borrower or any Restricted Subsidiary or any of their businesses; or
(xg) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof6.01 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Borrower), or (bii) if such encumbrance or restriction is not materially more disadvantageous to the Lenders than is customary in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (ax) the Borrower determines at the time of entry into such agreement or instrument in good faith that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the Borrower’s ability to make principal or interest payments on the Secured Obligations Loans or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement Indebtedness or instrument;
(xvB) relating to any encumbrance or restriction existing sale of receivables by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIForeign Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (Mattress Firm Group Inc.), Credit Agreement (Mattress Firm Group Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility (a) the Senior Facilities Agreement, (b) the Existing Encore Private Placement Notes Agreement, or (c) any other agreement or instrumentinstrument (including the Existing Secured Notes Indentures the Existing Unsecured Notes Indentures), in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to the Company or any Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company);
(4) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquiredacquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vii6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii7) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents debt purchase agreements and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(ix) 8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, the terms of any license, authorization, concession or permit or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging ObligationsAgreements;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv11) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof4.09 if (a) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Senior Facilities Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) as is customary in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause Company)or (b), either (a) the Borrower Company determines at the time of entry into such agreement or instrument Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentNotes;
(xv12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Board of Directors of the Company, are necessary or advisable;
(13) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof; or4.12;
(xvi14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to an the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or instrument effecting a refinancing of Indebtedness Incurred pursuant to, replaces the agreements containing the encumbrances or that otherwise refinances, an agreement or instrument referred to in clauses (irestrictions under Section 4.11(b) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, provided that the encumbrances terms and restrictions with respect to such Restricted Subsidiary contained in conditions of any such agreement encumbrances or instrument are restrictions are, in the good faith judgment of the Board of Directors of the Company, no less favorable more restrictive in any material respect than those under or pursuant to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement agreement so extended, renewed, refinanced or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIreplaced.
Appears in 2 contracts
Samples: Indenture (Encore Capital Group Inc), Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Parent will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Parent or any other Restricted Subsidiary;, or with respect to any other interest or participation in, or measured by, its profits;
(ii) make any loans or advances to the Borrower Parent or any other Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower Parent or any other Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Parent or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.04(a) shall will not prohibit:
(i) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility, (b) the Intercreditor Agreement, the ABL Intercreditor Agreement or any Additional Intercreditor Agreement, (c) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date, (d) the indenture governing the Super Senior Notes or (e) the indenture governing the Stub Notes;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Parent or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Parent or was merged, consolidated or otherwise combined with or into the Borrower Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.04(b)(ii), if another Person is the Successor CompanyCompany (as defined in Section 5.01(a)(i)), any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xviiii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b4.04(b)(i), Section 4.04(b)(ii) or this clause (xviSection 4.04(b)(iii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b4.04(b)(i), Section 4.04(b)(ii) or this clause (xviSection 4.04(b)(iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerBoard of Directors or an Officer of the Parent). Notwithstanding ;
(iv) any encumbrance or restriction:
A. that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
B. contained in mortgages, charges, pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Parent or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, charges, pledges or other security agreements; or
C. pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent or any Restricted Subsidiary;
(v) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired, or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the distribution or transfer of the assets or Capital Stock of the joint venture;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(ix) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(x) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements, Commodity Hedging Agreements or in connection with any Qualified Securitization Financing;
(xi) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.01 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than (i) the encumbrances and restrictions contained in this Indenture and the Intercreditor Agreement, together with the Security Documents associated therewith, in each case, as in effect on the Issue Date, or the ABL Intercreditor Agreement or (ii) as is customary in comparable financings (as determined in good faith by the Board of Directors or an Officer of the Parent) or where the Parent determines that such encumbrance or restriction will not adversely affect, in any material respect, the consummation Issuers’ ability to make principal or interest payments on the Notes; or
(xii) any encumbrance or restriction existing by reason of the Transactions shall not be prohibited by Article VIIany lien permitted under Section 4.03.
Appears in 2 contracts
Samples: Indenture (Ferroglobe PLC), Indenture (Ferroglobe PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company, UPC NL Holdco and an Affiliate Covenant Party will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary; provided that (xa) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (yb) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a4.08(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, in effect at or entered into on the Closing Signing Date, including, without limitation, this Agreement, the Covenant Agreement, the Existing Credit Agreement, the Existing Senior Secured Notes, the Intercreditor Agreement, the Security Documents and any related documentation, in each case, as in effect on the Signing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company, UPC NL Holdco or an Affiliate Covenant Party or was merged, merged or consolidated or otherwise combined with or into the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company, UPC NL Holdco, an Affiliate Covenant Party or any other Restricted Subsidiary other than the assets and property so acquired and provided, further, that for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in clause (1) or (2) of Section 4.08(b) or this clause (3) or contained in any amendment, supplement or other modification to an agreement referred to in clause (1) or (2) of Section 4.08(b) or this clause (3); provided, however, that the encumbrances and restrictions, taken as a whole, with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (1) or (2) of Section 4.08(b) (as determined in good faith by the Board of Directors or senior management of the Company);
(4) in the case of clause (3) of the first paragraph of this covenant, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary;
(vi5) any encumbrance or restriction pursuant to (a) Purchase Money Obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsAgreement, in each case, case that impose encumbrances or restrictions of the nature described in in Section 4.08(a)(3) on the property so acquired;
(vii6) any encumbrance or restriction arising in connection with any Purchase Money Note or other Indebtedness or a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors or senior management of the Company, are necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder asset sale agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into by the Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in the ordinary course of business;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, governmental license or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;Currency Agreements, Commodity Agreements or Interest Rate Agreements; and
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Signing Date pursuant to the provisions of Section 7.03 hereof4.09 if (a) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Finance Parties than (a) the encumbrances and restrictions contained in this Agreement, the Loan Documents or Covenant Agreement, the First-Priority Existing Credit Agreement, the Existing Senior Secured Note Notes, the Intercreditor Agreement, the Security Documents and any related documentation, in each case, as in effect on the Closing Signing Date (as determined in good faith by the Board of Directors or senior management of the Company, UPC NL Holdco or an Affiliate Covenant Party ) or (b) such encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Finance Parties than is customary in comparable financings (as determined in good faith by the BorrowerBoard of Directors or senior management of the Company, UPC NL Holdco or an Affiliate Covenant Party ) and whereand, in the case of clause (b)each case, either (ai) the Borrower determines at the time of entry into such agreement Company, UPC NL Holdco or instrument an Affiliate Covenant Party reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Proceeds Loan as and when they come due or (bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIIndebtedness.
Appears in 2 contracts
Samples: Additional Facility D Accession Deed (Liberty Global PLC), Additional Facility C Accession Deed (Liberty Global PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bclause(ii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 2 contracts
Samples: Indenture (GCP Applied Technologies Inc.), Indenture (W R Grace & Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(aClause (a) shall above will not prohibit:
(i) any encumbrance or restriction pursuant to (A) any credit facility Credit Facility (including the Credit Documents) or (B) any other agreement or instrument, in each case, in effect at or entered into on the Original Closing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this sub-clause (ivii), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xviiii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses sub-clause (i) to or (xvii) of this Section 7.08(b) above or this sub-clause (xviiii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses sub-clause (i) to or (xvii) of this Section 7.08(b) above or this sub-clause (xviiii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(iv) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Agreement to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(v) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(ix) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(x) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(xi) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to Section 10.1 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (A) the encumbrances and restrictions contained in this Agreement, together with the Security Documents associated therewith as in effect on the Closing Date or (B) in comparable financings (as determined in good faith by the Company) and where, in the case of clause (B), the consummation Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Transactions shall not be prohibited Borrowers’ ability to make principal or interest payments on the Loans or Unpaid Drawings;
(xii) [Reserved]; or
(xiii) any encumbrance or restriction existing by Article VIIreason of any Lien permitted under Section 10.3.
Appears in 1 contract
Samples: Secured Revolving Credit Agreement (NXP Semiconductors N.V.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(aThe provisions of Section 3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 3.4(b)(4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements agreements, organizational documents and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents First Lien Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date, (ii) the encumbrances and restrictions contained in the ABL Credit Agreement, together with the security documents associated therewith, or this Indenture as in effect on the Issue Date or (biii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (biii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereofSection 3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (iSections 3.4(b)(1) to (xv) of this Section 7.08(b3.4(b)(15) or this clause (xviSection 3.4(b)(16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (iSections 3.4(b)(1) to (xv) of this Section 7.08(b3.4(b)(15) or this clause (xviSection 3.4(b)(16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are either (a) no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding Company) or (b) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any other provision to the contrarymaterial respect, the consummation of Company’s ability to make principal or interest payments on the Transactions shall not be prohibited by Article VIINotes.
Appears in 1 contract
Samples: Indenture (Option Care Health, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Each of the Issuers and Holdings will not, and shall will not permit any Restricted Subsidiary to, to create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuers or any Restricted Subsidiary;
(ii2) make any loans or advances to Holdings, the Borrower Issuers or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to Holdings, the Borrower Issuers or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to Holdings, the Borrower Issuers or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuers or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into Holdings, the Borrower Issuers or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by Holdings, the Borrower Issuers or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by Holdings or the Borrower Issuers or was merged, consolidated or otherwise combined with or into Holdings, the Borrower Issuers or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuers or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of Holdings, the Borrower Issuers or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Issuers or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of Holdings, the Borrower Issuers or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerHoldings, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerIssuers) and where, in the case of clause (bii), either (aA) the Borrower determines Issuers determine at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s Issuers’ ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuers). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Trisyn Group, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary (other than a Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date (or otherwise required as of the Issue Date);
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or such agreement or instrument was entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and or Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicepractices;
(xi10) any encumbrance or restriction pursuant to Hedging Obligations;
(xii11) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv13) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi14) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, restates, replaces, restructures or refinances, an agreement or instrument referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14) (an “Initial Agreement”) or contained in any amendment, supplement supplement, extension, renewal, restatement, replacement, restructuring or other modification to an agreement referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no not materially less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Cott Corp /Cn/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company, UPC NL Holdco and an Affiliate Covenant Party will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary; provided that (xa) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (yb) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a4.08(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, in effect at or entered into on the Closing Signing Date;
(ii) any encumbrance or restriction pursuant to , including, without limitation, this Agreement, the Collateral Existing Credit Agreement, the Existing Senior Secured Notes, the Intercreditor Agreement, the Security Documents and any related documentation, in each case, as in effect on the Guarantees;Signing Date; 59836545_7
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company, UPC NL Holdco or an Affiliate Covenant Party or was merged, merged or consolidated or otherwise combined with or into the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company, UPC NL Holdco, an Affiliate Covenant Party or any other Restricted Subsidiary other than the assets and property so acquired and provided, further, that for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in clause (1) or (2) of Section 4.08(b) or this clause (3) or contained in any amendment, supplement or other modification to an agreement referred to in clause (1) or (2) of Section 4.08(b) or this clause (3); provided, however, that the encumbrances and restrictions, taken as a whole, with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Lenders than the encumbrances and restrictions contained in such agreements referred to in clauses (1) or (2) of Section 4.08(b) (as determined in good faith by the Board of Directors or senior management of the Company);
(4) in the case of clause (3) of the first paragraph of this covenant, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions 59836545_7 restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary;
(vi5) any encumbrance or restriction pursuant to (a) Purchase Money Obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsAgreement, in each case, case that impose encumbrances or restrictions of the nature described in in Section 4.08(a)(3) on the property so acquired;
(vii6) any encumbrance or restriction arising in connection with any Purchase Money Note or other Indebtedness or a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors or senior management of the Company, are necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder asset sale agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into by the Company, UPC NL Holdco, an Affiliate Covenant Party or any Restricted Subsidiary in the ordinary course of business;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, governmental license or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;Currency Agreements, Commodity Agreements or Interest Rate Agreements; and
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Signing Date pursuant to the provisions of Section 7.03 hereof4.09 if (a) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Finance Parties than (a) the encumbrances and restrictions contained in this Agreement, the Loan Documents or Existing Credit 59836545_7 Agreement, the First-Priority Existing Senior Secured Note Notes, the Intercreditor Agreement, the Security Documents and any related documentation, in each case, as in effect on the Closing Signing Date (as determined in good faith by the Board of Directors or senior management of the Company, UPC NL Holdco, or an Affiliate Covenant Party) or (b) such encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Finance Parties than is customary in comparable financings (as determined in good faith by the BorrowerBoard of Directors or senior management of the Company, UPC NL Holdco, or an Affiliate Covenant Party) and whereand, in the case of clause (b)each case, either (ai) the Borrower determines at the time of entry into such agreement Company, UPC NL Holdco, or instrument an Affiliate Covenant Party reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Facilities as and when they come due or (bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIIndebtedness.
Appears in 1 contract
Samples: Additional Facility C2 Accession Deed (Liberty Global PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(iA) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(iiB) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iiiC) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNote Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
(Aa) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(Bb) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(Cc) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Dd) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (a) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi)clause; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Infrastructure & Energy Alternatives, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any a Restricted Subsidiary;
, (ii2) make any loans or advances to the Borrower Issuer or any a Restricted Subsidiary; or
Subsidiary or (iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or a Restricted Subsidiary.
(b) Section 4.09(a) shall not apply to:
(1) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date (as in effect on the Issue Date) or with respect to the Credit Facility;
(2) any agreement or obligation of a Person acquired by the Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be Incurred;
(3) any encumbrance or restriction pursuant to an agreement of any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Unrestricted Subsidiary;
(4) any encumbrance or restriction with respect to an asset or a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of such asset or all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(5) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(6) restrictions on cash, Cash Equivalents or other deposits or net worth imposed under contracts entered into in the ordinary course of business, including such restrictions imposed by customers or insurance, surety or bonding companies;
(7) provisions contained in any license, permit or other accreditation with a regulatory authority relating to a Related Business and entered into in the ordinary course of business;
(8) provisions in agreements or instruments which prohibit the payment or making of dividends or other distributions other than on a pro rata basis;
(9) customary non-assignment provisions in contracts, licenses and other agreements (including, without limitation, leases) entered into in the ordinary course of business;
(10) provisions limiting the disposition or distribution of assets or property in partnership agreements, limited liability company operating agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of the Board of Directors of the Issuer or otherwise in the ordinary course of business of the Issuer, which limitation is applicable only to the assets that are the subject of such agreements and any proceeds therefrom;
(11) provisions contained in the Indenture Documents;
(12) any agreement or instrument relating to other Indebtedness or Preferred Stock permitted to be incurred subsequent to the Issue Date under Section 4.10 if the encumbrances and restrictions are (i) not materially more restrictive than the terms of the Credit Facility as in effect on the Issue Date (as determined in good faith by an Officer) or (ii) customary for instruments of such type and will not materially adversely impact the ability of the Issuer to make required payments of principal, interest or premium or Additional Amounts, if any, on the Notes;
(13) Liens permitted to be incurred under Section 4.13 that limit the right of the debtor to dispose of the assets subject to such Liens;
(14) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on that property of the nature described in Section 4.09(a)(3);
(15) customary provisions in joint venture agreements and other similar agreements relating solely to such joint venture; provided and
(16) any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (15) above, provided, however, that such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is not materially more restrictive, taken as a whole, than (xi) the agreement as it existed prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing or (ii) the Credit Facility (as in effect on the Issue Date), in each case as determined in good faith by an Officer.
(c) For purposes of determining compliance with this Section 4.09, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (y2) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any a Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any such Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit:
(i) any encumbrance or a restriction pursuant to any credit facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal loans or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIadvances.
Appears in 1 contract
Samples: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, (ii) the Existing Unsecured Notes or (iii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Notes, the Collateral Documents Documents, the Intercreditor Agreements and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bclause(ii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Parent Guarantor shall not, and shall not permit any Restricted Subsidiary (that is not the Company) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations Obligations owed to the Borrower Parent Guarantor or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Parent Guarantor or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Parent Guarantor or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Parent Guarantor or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(aSECTION 3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility, (b) the Existing Secured Notes, (c) the Senior Notes or (d) any other agreement or instrument, in each case, in effect at or entered into on or prior to the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreementthe Note Documents, the Collateral Documents and the GuaranteesIntercreditor Agreements;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, amalgamated, consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent Guarantor or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Parent Guarantor or was merged, amalgamated, consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date, which encumbrance or restriction only applies to the Person so acquired and its Subsidiaries (or their respective property or assets) or the property or assets so acquired; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Parent Guarantor or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
(Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement Indenture and the Collateral Documents or securing Indebtedness of the Borrower Parent Guarantor or a Restricted Subsidiary permitted under this Agreement Indenture and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(Ciii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Parent Guarantor or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Parent Guarantor or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Parent Guarantor or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Div) pursuant to customary provisions restricting dispositions of real property Real Property interests set forth in any reciprocal easement agreements of the Borrower Parent Guarantor or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement Indenture and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Parent Guarantor or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Swap Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 SECTION 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerParent Guarantor, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) SECTION 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, the ABL Credit Agreement, any indenture governing a series of Existing Secured Notes or the First-Priority indenture governing the Senior Secured Note Documents Notes, in each case, together with the security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerParent Guarantor) and where, in the case of clause (bii), either (a) the Borrower Parent Guarantor determines in good faith at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal principal, premium (if applicable) or interest payments on the Secured Obligations Notes or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereofSECTION 3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(bSECTION 3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(bSECTION 3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerParent Guarantor). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (iHeartMedia, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation regulation, order, approval, license, permit or orderother similar restriction, including under contracts with domestic or foreign governments or agencies thereof entered into in the ordinary course of business or consistent with past practice;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, arrangements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi10) any encumbrance or restriction pursuant to Hedging Obligations;
(xii11) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii12) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv13) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv14) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6;
(15) any encumbrances, restrictions, contractual requirements or other provisions of the Transaction Agreements or in connection with any of the Transactions in a manner consistent in all material respects with the disclosures set forth in the Offering Memorandum;
(16) Secured Indebtedness otherwise permitted to be incurred pursuant to Section 3.2 and Section 3.6 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(17) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance solely of the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder (and any accessions and additions thereto and any improvements, proceeds and products thereof) and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(18) restrictions and conditions on any Restricted Subsidiary organized in jurisdictions where such restrictions are customary or any state or other political subdivision thereof; or
(xvi19) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv18) of this Section 7.08(b3.4(b) or this clause (xvi19) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv18) of this Section 7.08(b3.4(b) or this clause (xvi19); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision Company) or (ii) ordinary and customary with respect to such instruments and obligations at the contrarytime of such amendment, the consummation of the Transactions shall not be prohibited by Article VIImodification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Samples: Indenture (Versum Materials, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility (including the Senior Finance Documents) or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date, including the indentures governing the Existing Secured Notes and the Existing Unsecured Notes and the agreement governing the Term Loans;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b4.08(b)(1), 4.08(b)(2) or this clause (xvi4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b4.08(b)(1), 4.08(b)(2) or this clause (xvi4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the contrary, extent such encumbrances or restrictions restrict the consummation transfer of the Transactions shall not be prohibited by Article VII.property or assets subject to such mortgages, pledges, charges or other security agreements; or
(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;
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Restricted Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower the Restricted Parent Guarantor or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Restricted Parent Guarantor or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Restricted Parent Guarantor or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Restricted Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Restricted Parent Guarantor or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Collateral Documents, the Intercreditor Agreement, the Collateral Documents and the Note Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv3) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Restricted Parent Guarantor or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Restricted Parent Guarantor or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Restricted Parent Guarantor or was merged, consolidated or otherwise combined with or into the Borrower Restricted Parent Guarantor or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Restricted Parent Guarantor or any Restricted Subsidiary when such Person becomes the Successor Company;
(v4) any encumbrance or restriction:
(Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement Indenture and the Collateral Documents or securing Indebtedness of the Borrower Restricted Parent Guarantor or a Restricted Subsidiary permitted under this Agreement Indenture and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Restricted Parent Guarantor or any Restricted Subsidiary;
(vi5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement Indenture and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii6) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Restricted Parent Guarantor or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii7) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instruments;
(ix) 8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi10) any encumbrance or restriction pursuant to Hedging Obligations;
(xii11) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries Non-Guarantors permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries Non-Guarantors party thereto or their Subsidiaries;
(xiii12) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerIssuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv13) any encumbrance or restriction arising pursuant to an agreement or instrument (relating which, if it relates to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole (i) are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained in the Loan Documents or Credit Agreements and the First-Senior Priority Senior Secured Note Documents Notes, together with the security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (aA) the Borrower Restricted Parent Guarantor determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv14) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi15) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv14) of this Section 7.08(b3.4(b) or this clause (xvi15) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv14) of this Section 7.08(b3.4(b) or this clause (xvi15); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Essar Steel Algoma Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Iridium shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash to Iridium or otherwise any Restricted Subsidiary on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, (ii) pay any Indebtedness or other obligations owed to the Borrower Iridium or any Restricted Subsidiary;
, (iiiii) make any loans or advances to the Borrower Iridium or any Restricted Subsidiary; or
Subsidiary or (iiiiv) sell, lease or transfer any of its property or assets to the Borrower Iridium or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit, except:
(i) any encumbrance or restriction pursuant to any credit facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv1) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to the Guaranteed Bank Facility or any Capital Stock other agreement in effect at or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted SubsidiaryIssue Date, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for this Indenture or the direct Series B Notes, the Series A Indenture or indirect sale the Series A Notes (or disposition similar limitations pursuant to a Person of all other notes issued by Iridium, or indentures relating thereto, that are substantially all the Capital Stock or assets of the Borrower similar 57 49 to those set forth in this Indenture), or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent agreement relating to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Secured Bank Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi2) any encumbrance or restriction pursuant to an agreement relating to any Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries;
(3) any encumbrance or restriction pursuant to (x) an agreement or instrument effecting a refinancing of pursuant to which Indebtedness which Refinances Indebtedness Incurred pursuant to, to an agreement referred to in clause (1) or that otherwise refinances, (2) or this clause (3) is Incurred or contained in any amendment to an agreement or instrument referred to in clauses clause (i1) to or (xv) of this Section 7.08(b2) or this clause (xvi3), or (y) Indebtedness Incurred pursuant to clause (an “Initial Agreement”i), (ii) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xviii) of this paragraph (b) of Section 7.08(b) or this clause (xvi)4.03; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement refinancing agreement, instrument or instrument are amendment referred to in clause (x) above are, taken as a whole, no less favorable more restrictive in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates predecessor agreements (as determined by the chief financial officer of Iridium in good faith and evidenced by a certificate filed with the BorrowerTrustee). Notwithstanding ;
(4) any other provision encumbrance or restriction contained in security agreements or mortgages securing Indebtedness, or under any documents providing for Capital Lease Obligations, of a Restricted Subsidiary which are not prohibited by Section 4.12 herein to the contrary, extent such encumbrances or restrictions restrict the consummation assignment or transfer of the Transactions property or assets subject to such security agreements or mortgages, or subject to such Capital Lease Obligations;
(5) any encumbrance or restriction existing under or by reason of applicable law or regulations;
(6) customary non-assignment provisions of any licensing agreement or of any lease but only to the extent such provisions restrict the transfer of the license, lease or the property thereunder;
(7) any encumbrance or restriction contained in contracts for sales of assets otherwise permitted by this Indenture;
(8) with respect to a Restricted Subsidiary, any encumbrance or restriction imposed pursuant to an agreement that has been entered into for the sale of all or substantially all of the Capital Stock of such Restricted Subsidiary; provided, however, that after giving effect to such transaction no Default shall have occurred or be continuing, that such restriction terminates if such transaction is not be prohibited by Article VIIconsummated and 58 50 that such consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into;
(9) any encumbrance or restriction, with respect to a Restricted Subsidiary that is not a Restricted Subsidiary on the date of this Indenture, in existence at the time such Person becomes a Restricted Subsidiary and not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary; and
(10) any restriction on the sale or other disposition of assets or property securing Indebtedness as a result of a Permitted Lien on such assets or property.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(iA) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(iiB) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iiiC) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility (a) the Senior Facilities Agreement or (b) any other agreement or instrumentinstrument (including the Existing Notes Indentures), in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such the Company or any Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements, debt purchase agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, the consummation terms of any license, authorization, concession or permit or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09 if (a) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) as is customary in comparable financings (as determined in good faith by the Company)or (b) the Company determines at the time such Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes or the ability of Cabot (Treasury) Ireland to make principal or interest payments on the Proceeds Loan;
(12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Transactions shall not be prohibited Board of Directors of the Company, are necessary or advisable;
(13) any encumbrance or restriction existing by Article VIIreason of any lien permitted under Section 4.12;
(14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions under Section SECTION 4.11. (b) provided that the terms and conditions of any such encumbrances or restrictions are, in the good faith judgment of the Board of Directors of the Company, no more restrictive in any material respect than those under or pursuant to the agreement so extended, renewed, refinanced or replaced.
Appears in 1 contract
Samples: Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.05
(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv2), if another Person is the Successor CompanyPerson, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor CompanyPerson;
(v3) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi4) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquiredacquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vii5) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii6) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(ix7) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority, including pursuant to the terms of any license, concession, authorization, franchise, permit or similar arrangement;
(x) 8) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi9) any encumbrance or restriction pursuant to Hedging ObligationsCurrency Agreements or Interest Rate Agreements;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv10) any encumbrance or restriction arising pursuant to an agreement or instrument (x) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof4.06 (other than any refinancing Indebtedness which is subject to Section 4.05(b)(13) below) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Revolving Credit Facility and the Intercreditor Agreement, together with the Security Documents or the First-Priority Senior Secured Note Documents associated therewith as in effect on the Closing Issue Date or (bii) is customary in comparable financings (as determined in good faith by the BorrowerCompany) and where, in or where the case of clause (b), either (a) the Borrower Company determines at the time of entry into when such agreement or instrument Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes (as determined in good faith by a responsible financial or chief accounting officer of the Company), or (by) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentconstituting an Additional Intercreditor Agreement;
(xv11) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof4.09 and the Intercreditor Agreement or any Additional Intercreditor Agreement;
(12) restrictions effected in connection with a Qualified Receivables Financing that, in the good faith determination of the Board of Directors of the Company, are necessary or advisable to effect such Qualified Receivables Financing; or
(xvi13) any agreement, encumbrance or restriction that extends, renews, refinances or replaces any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (iSections 4.05(b)(1) to (xvthrough 4.05(b)(12) of above or this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”4.05(b)(13) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (iSections 4.05(b)(1) to (xvthrough 4.05(b)(12) of above or this Section 7.08(b) or this clause (xvi4.05(b)(13); provided, however, that the such encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement agreement, encumbrance or instrument restriction are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained so extended, refinanced, replaced, amended, supplemented or modified, or will not adversely affect, in any material respect, the Initial Agreement Issuer’s ability to make principal or Initial Agreements to which such refinancing or amendment, supplement or other modification relates interest payments on the Notes (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation a responsible financial or chief accounting officer of the Transactions shall not be prohibited by Article VIICompany).
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of the Section 7.08(a4.08(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility (including the Senior Finance Documents and Bridge Finance Documents) or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or Company was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses clause (i1) to or (xv2) of this Section 7.08(b) paragraph or this clause (xvi3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses clause (i1) to or (xv2) of this Section 7.08(b) paragraph or this clause (xvi3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Agreement securing Indebtedness of the Company or any Restricted Subsidiary to the contrary, extent such encumbrances or restrictions restrict the consummation transfer of the Transactions shall property subject to such mortgages, pledges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 4.05 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not be prohibited by Article VIImaterially less favorable to the Holders of the Loans and PIK Notes (if any) than the encumbrances and restrictions contained in the Senior Facilities Agreement and the Intercreditor Agreement, in each case, as in effect on the Closing Date; or
(12) restrictions effected in connection with a Qualified Receivables Financing that, in the good faith determination of the Board of Directors of the Company, are necessary or advisable to effect such Qualified Receivables Financing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements agreements, organizational documents and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b) paragraph or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b) paragraph or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Owens & Minor Inc/Va/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(aClause (a) shall above will not prohibit:
(i) any encumbrance or restriction pursuant to (A) any credit facility Credit Facility (including the Credit Documents and the Bridge Facilities) or (B) any other agreement or instrument, in each case, in effect at or entered into on the Closing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this sub-clause (ivii), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xviiii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses sub-clause (i) to or (xvii) of this Section 7.08(b) above or this sub-clause (xviiii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses sub-clause (i) to or (xvii) of this Section 7.08(b) above or this sub-clause (xviiii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(iv) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Agreement to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(v) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(ix) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(x) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(xi) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to Section 10.1 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (A) the encumbrances and restrictions contained in this Agreement, together with the Security Documents associated therewith as in effect on the Closing Date or (B) in comparable financings (as determined in good faith by the Company) and where, in the case of paragraph (B), the consummation Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Transactions shall not be prohibited Borrowers’ ability to make principal or interest payments on the Loans or Unpaid Drawings;
(xii) [Reserved]; or
(xiii) any encumbrance or restriction existing by Article VIIreason of any Lien permitted under Section 10.3.
Appears in 1 contract
Samples: Secured Revolving Credit Agreement (NXP Manufacturing (Thailand) Co., Ltd.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility (including the Senior Finance Documents) or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b4.08(b)(l), 4.08(b)(2) or this clause (xvi4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b4.08(b)(l), 4.08(b)(2) or this clause (xvi4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument (a) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.05 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith, as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of clause (ii), the consummation Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Transactions shall not be prohibited Issuers’ ability to make principal or interest payments on the Notes; or
(12) any encumbrance or restriction existing by Article VIIreason of any lien permitted under Section 4.07.
Appears in 1 contract
Samples: Senior Unsecured Indenture (NXP Manufacturing (Thailand) Co., Ltd.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary (other than the Issuer and the Affiliate Guarantors) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Issuer and the Affiliate Guarantors) to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (y) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a4.08(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date, including, without limitation, this Indenture, the Existing Senior Secured Notes Indentures, the Existing Senior Notes Indentures, the Senior Credit Facility, the Intercreditor Deeds, the Security Documents and any related documentation, in each case, as in effect on the Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, merged or consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired and provided, further, that for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in clause (1) or (2) of this Section 4.08(b) or this clause (3) or contained in any amendment, supplement or other modification to an agreement referred to in clause (1) or (2) of this Section 4.08(b) or this clause (3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (1) or (2) of this Section 4.08(b) (as determined in good faith by the Board of Directors or senior management of the Company);
(4) in the case of Section 4.08(a)(3), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Agreement and the Collateral Documents or Indenture securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi5) any encumbrance or restriction pursuant to (A) Purchase Money Obligations for property acquired in the ordinary course of business and (B) Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, case that impose encumbrances or restrictions of the nature described in Section 4.08(a)(3) on the property so acquired;
(vii6) any Purchase Money Note or other Indebtedness or contractual requirements Incurred with respect to a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors or senior management of the Company, are necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreementsasset sale, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation regulation, governmental license or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;Currency Agreements, Commodity Agreements or Interest Rate Agreements; and
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof4.09 if (a) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained in the Loan Documents or Senior Credit Facility, the First-Priority Existing Senior Secured Note Documents Notes Indentures and the Group Intercreditor Deed, in each case, as in effect on the Closing Issue Date (as determined in good faith by the Board of Directors or senior management of the Company) or (b) such encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the BorrowerBoard of Directors or senior management of the Company) and whereand, in the case of clause (b)each case, either (ax) the Borrower determines at the time of entry into such agreement or instrument Company reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes as and when they come due or (by) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIIndebtedness.
Appears in 1 contract
Samples: Indenture (Liberty Global PLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Issuer or any Restricted SubsidiarySubsidiary that is a Guarantor; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted SubsidiarySubsidiary that is a Guarantor; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv3) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, amalgamated, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, amalgamated, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v4) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Issuer or any Restricted Subsidiary;
(vi5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii6) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii7) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) 8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi10) any encumbrance or restriction pursuant to Hedging Obligations;
(xii11) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii12) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility[reserved];
(xiv13) any encumbrance or restriction arising pursuant to an agreement or instrument (relating which if it relates to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof3.2) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole (i) are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (aA) the Borrower Issuer determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv14) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi15) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv14) of this Section 7.08(b3.4(b) or this clause (xvi15) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv14) of this Section 7.08(b3.4(b) or this clause (xvi15); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNote Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Af) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bg) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ch) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Issuer or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Issuer or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerIssuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of clause (bii), either (aA) the Borrower Issuer determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Each of the Issuer and Holdings will not, and shall will not permit any Restricted Subsidiary to, to create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to Holdings, the Borrower Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to Holdings, the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to Holdings, the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into Holdings, the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by Holdings, the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by Holdings or the Borrower Issuer or was merged, consolidated or otherwise combined with or into Holdings, the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv2), if another Person is the Successor Company, any Subsidiary Subsidi-ary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of Holdings, the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Issuer or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of Holdings, the Borrower Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerHoldings, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of clause (bii), either (aA) the Borrower Issuer determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Trisyn Group, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall From and after the Escrow Assumption, ARP will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower ARP or any Restricted Subsidiary;
Subsidiary (ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(yii) make any loans or advances to ARP or any Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower ARP or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower ARP or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restrictionadvances); or
(iii) sell, lease or transfer any of its property or assets to ARP or any Restricted Subsidiary.
(b) Section 7.08(a) shall The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility or any other by reason of (a) an agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date, including the indenture governing the Existing Notes, and (b) this Indenture;
(ii2) any encumbrance or restriction with respect to a Person pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to by reason of an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of Incurred by a Person, entered into Person on or before the date on which such Person was acquired by ARP or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a another Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became was acquired by ARP or a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such the transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or that any such Subsidiary encumbrance or restriction shall be deemed acquired not extend to any assets or assumed by the Borrower property of ARP or any Restricted Subsidiary when such Person becomes other than the Successor Companyassets and property so acquired;
(v3) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of, or from the ability of ARP and the Restricted Subsidiaries to realize the value of, property or assets of ARP or any Restricted Subsidiary in any manner material to ARP or any Restricted Subsidiary;
(4) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of ARP or any Restricted Subsidiary other than the assets and property so acquired;
(5) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was Incurred if:
(a) either (1) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (2) the Issuers determine that any such encumbrance or restriction will not materially affect the Issuers’ ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive; and
(b) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financing (as determined by the Company);
(6) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (1) through (5) or clause (12) of this paragraph (b) or this clause (6) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (1) through (5) or clause (12) of this paragraph (b) or this clause (6); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (1) through (5) or clause (12) of this paragraph (b) on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(7) in the case of Section 4.11(a)(iii), any encumbrance or restriction:
(Aa) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a leaselease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in oil and gas properties), license or similar contract or agreementcontract, or the assignment or transfer of any leasesuch lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in oil and gas properties), license or other contract or agreementcontract;
(Bb) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or arising from Permitted Liens securing Indebtedness of the Borrower ARP or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Dc) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower ARP or any Restricted Subsidiary;
(vid) restrictions on cash or other deposits imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(e) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business that solely affect the assets or property that is the subject of such agreements and provided that in the case of joint venture agreements such provisions solely affect assets or property of the joint venture; or
(f) any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction pursuant relates only to Purchase Money Obligations the property or assets so acquired and is not and was not created in anticipation of such acquisitions;
(a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions of the nature described in Section 4.11(a)(iii) on the property so acquired;
(vii9) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii10) any customary provisions encumbrances or restrictions imposed pursuant to any agreement of the type described in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instrumentsthe definition of “Permitted Business Investment”;
(ix11) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;; and
(x12) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into the Senior Secured Credit Agreement as in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination effect as of the BorrowerIssue Date, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are necessary or advisable no more restrictive with respect to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances dividend and other payment restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions those contained in the Loan Documents or the First-Priority Senior Secured Note Documents Credit Agreement as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIIssue Date.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv13) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv14) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi15) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv14) of this Section 7.08(b3.4(b) or this clause (xvi15) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv14) of this Section 7.08(b3.4(b) or this clause (xvi15); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Townsquare Media, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, (ii) the Existing Notes or (iii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv3), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bclause(ii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements agreements, organizational documents and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreements, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b) paragraph or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b) paragraph or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Owens & Minor Inc/Va/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Borrower Issuer or any a Restricted Subsidiary;
, (ii2) make any loans or advances to the Borrower Issuer or any a Restricted Subsidiary; or
Subsidiary or (iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any a Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a4.09(a) shall not prohibitapply to:
(i1) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date (as in effect on the Issue Date) or with respect to the Credit Agreement (as in effect on the Issue Date);
(ii2) any agreement or obligation of a Person acquired by the Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be Incurred;
(3) any encumbrance or restriction pursuant to this Agreementan agreement of any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, which encumbrance or restriction is not applicable to any Person, or the Collateral Documents and properties or assets of any Person, other than the GuaranteesUnrestricted Subsidiary;
(iii4) any encumbrance or restriction with respect to an asset or a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of such asset or all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(5) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv6) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Personrestrictions on cash, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license Cash Equivalents or other contract deposits or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted net worth imposed under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party contracts entered into in the ordinary course of business business, including such restrictions imposed by customers or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property insurance, surety or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiarybonding companies;
(vi7) provisions contained in any encumbrance license, permit or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition other accreditation with a regulatory authority relating to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents Related Business and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi) any encumbrance 8) provisions in agreements or restriction pursuant to Hedging Obligationsinstruments which prohibit the payment or making of dividends or other distributions other than on a pro rata basis;
(xii9) customary non-assignment provisions in contracts, licenses and other agreements (including, without limitation, leases) entered into in the ordinary course of business;
(10) provisions limiting the disposition or distribution of assets or property in partnership agreements, limited liability company operating agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of the Board of Directors of the Issuer or otherwise in the ordinary course of business of the Issuer, which limitation is applicable only to the assets that are the subject of such agreements and any proceeds therefrom;
(11) provisions contained in the Indenture Documents;
(12) any agreement or instrument relating to other Indebtedness of Foreign Subsidiaries or Preferred Stock permitted to be Incurred or issued incurred subsequent to the Closing Issue Date pursuant to the provisions of under Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) 4.10 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are (i) not materially less favorable to more restrictive than the Lenders than (a) terms of the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents Credit Agreement as in effect on the Closing Issue Date or (b) in comparable financings (as determined in good faith by an Officer of the BorrowerIssuer) and where, or (ii) customary for instruments of such type in the case of clause (b), either (a) the Borrower determines market at the such time of entry into such agreement or instrument that such encumbrances or restrictions and will not materially adversely affect, in any material respect, impact the Borrower’s ability of the Issuer to make principal required payments of principal, interest or interest payments premium or Additional Amounts, if any, on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentNotes;
(xv13) any encumbrance or restriction existing by reason of any Lien Liens permitted to be incurred under Section 7.01 hereof; or4.13 that limit the right of the debtor to dispose of the assets subject to such Liens;
(xvi14) any encumbrance or restriction pursuant purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on that property of the nature described in Section 4.09(a)(3);
(15) customary provisions in joint venture agreements and other similar agreements relating solely to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses such joint venture; and
(i16) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement modification, restatement, renewal, increase, supplement, refunding, replacement or other modification to refinancing of an agreement referred to in clauses (i1) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.through
Appears in 1 contract
Samples: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Issuer will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
Subsidiary (ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(y2) make any loans or advances to the Issuer or any Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restriction.advances); or
(b3) Section 7.08(a) shall sell, lease or transfer any of its property or assets to the Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to any credit facility or any other by reason of an agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date, including, without limitation, this Indenture, the Security Documents, the Intercreditor Agreement or Permitted Letter of Credit Facility in effect on such date;
(ii) any encumbrance or restriction with respect to a Person pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to by reason of an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of Incurred by a Person, entered into Person on or before the date on which such Person was acquired by the Issuer or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a another Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became was acquired by the Issuer or a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such the transaction) and outstanding on such date; provided thatprovided, for that any such encumbrance or restriction shall not extend to any assets or property of the purposes of this clause (iv), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person Issuer or any such other Restricted Subsidiary shall be deemed acquired other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or assumed by in the Borrower aggregate, detract from the value of, or from the ability of the Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Issuer or any Restricted Subsidiary when in any manner material to the Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to, entered into before the date on which such Person becomes Unrestricted Subsidiary became a Restricted Subsidiary; provided, that such agreement was not entered into in anticipation of the Successor CompanyUnrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i), (ii), (iv) or (xi) of this paragraph or this clause (v) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i), (ii), (iv) or (xi) of this paragraph or this clause (v); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (i), (ii), (iv) or (xi) of this paragraph on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(vi) in the case of clause (3) of the first paragraph of this Section 4.13, any encumbrance or restriction:
(Aa) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a leaselease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract or agreementcontract, or the assignment or transfer of any leasesuch lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or other contract or agreementcontract;
(Bb) contained in mortgagesMortgages, pledges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents or Indenture securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgagesMortgages, pledges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Dc) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Issuer or any Restricted Subsidiary;
(vid) any encumbrance restrictions on cash or restriction pursuant other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(e) provisions with respect to Purchase Money Obligations the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.13 on the property so acquired;
(viiviii) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viiiix) any customary provisions encumbrances or restrictions imposed pursuant to any agreement of the type described in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instrumentsthe definition of “Permitted Business Investment”;
(ixx) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;; and
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal arising or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance Permitted Commodity Hedging Obligation or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIPermitted Other Hedging Obligation.
Appears in 1 contract
Samples: Indenture (GMX Resources Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(iA) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(iiB) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iiiC) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility (a) the Senior Facilities Agreement or (b) any other agreement or instrumentinstrument (including the Existing Notes Indenture), in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements, and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of this clause (ii), the consummation Company determines at the time such Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes or the ability of Cabot UK Financial to make principal or interest payments on the Proceeds Loan;
(12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Transactions shall not be prohibited Board of Directors of the Company, are necessary or advisable; or
(13) any encumbrance or restriction existing by Article VIIreason of any lien permitted under Section 4.12.
Appears in 1 contract
Samples: Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall not, and shall not permit any Restricted Subsidiary to, create Create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (ia) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
; (iib) make any loans or advances to the Borrower or any Restricted Subsidiary; or
or (iiic) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) . Notwithstanding anything contained herein, the following shall not prohibitbe prohibited by this Section 7.09:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or the documents governing the Senior Notes or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor CompanyBorrower, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor CompanyBorrower;
(v3) any encumbrance or restriction:
restriction (Aa) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement;
contract; (Bb) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Dc) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi4) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsAgreement, in each case, that impose encumbrances or restrictions on the property so acquiredacquired or any encumbrance;
(vii5) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii6) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(ix7) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) 8) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi9) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii10) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facilityand that apply to such Securitization Subsidiary;
(xiv11) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in this Agreement, together with the Loan Documents or the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (ai) the Borrower determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations Indebtedness, including the Senior Notes, or (bii) such encumbrance or restriction applies only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such agreement or instrumentIndebtedness;
(xv12) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof7.01; or
(xvi13) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to or (xv2) of this Section 7.08(b) paragraph or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to or (xv2) of this Section 7.08(b) paragraph or this clause (xvi13); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Credit Agreement (Igate Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Parent will not, and shall will not permit the Issuer or any other Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Parent, the Issuer or any other Restricted Subsidiary, or with respect to any other interest or participation in, or measured by, its profits;
(ii) make any loans or advances to the Borrower Parent, the Issuer or any other Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower Parent, the Issuer or any other Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.,
(b) The provisions of Section 7.08(a4.04(a) shall will not prohibit:
(i) any encumbrance or restriction pursuant to or arising from (a) any credit facility Credit Facility (including the Term Facilities and the Revolving Credit Facility), (b) the Intercreditor Agreement or any Additional Intercreditor Agreement, (c) this Indenture, (d) any other agreement or instrumentinstrument of the Parent, in each case, the Issuer or any other Restricted Subsidiary as of the Issue Date that is in effect at on or was entered into on the Closing DateIssue Date or in connection with the Transactions, or (e) any other agreement or instrument that is necessary or advisable (as determined in good faith by the Parent’s Board of Directors or a member of Senior Management) to consummate the Transactions;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Parent, the Issuer or any other Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent, the Issuer or any other Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration infor, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Parent or was merged, consolidated or otherwise combined with or into the Borrower Parent, the Issuer or any other Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), if another Person is the resulting, surviving or transferee Person following such merger, consolidation or combination (the “Successor Company”), any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Parent, the Issuer or any other Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xviiii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses clause (i) to or (xvii) of this Section 7.08(b4.04(b) or this clause (xviSection 4.04(b)(iii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses clause (i) to or (xvii) of this Section 7.08(b4.04(b) or this clause (xviSection 4.04(b)(iii); provided, however, that (a) the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation Parent’s Board of the Transactions shall not be prohibited by Article VII.Directors or a member of Senior Management) or
Appears in 1 contract
Samples: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any of its Restricted Subsidiary Subsidiaries to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any of its Restricted SubsidiarySubsidiaries;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock or other common equity interests and (y) the subordination of (including the application of any standstill requirements to) loans loans, advances or advances any other obligation made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
restriction (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements (including stockholder agreements) and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent arising in connection with past practiceany Permitted Liens;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, Company are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (aA) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower Company determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s Issuers’ ability to make principal or interest payments on the Secured Obligations or Notes, (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement Indebtedness or instrument(C) such encumbrances or restrictions are not materially more disadvantageous, taken as a whole, to the holders of the Notes than is customary in comparable financings for similarly situated issuers;
(xv15) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Trinseo S.A.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(iA) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(iiB) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iiiC) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility (a) the Senior Facilities Agreement or (b) any other agreement or instrumentinstrument (including the Existing Notes Indentures), in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such the Company or any Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements, debt purchase agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, the consummation terms of any license, authorization, concession or permit or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09 if (a) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) as is customary in comparable financings (as determined in good faith by the Company)or (b) the Company determines at the time such Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes or the ability of Cabot UK Financial to make principal or interest payments on the Proceeds Loan;
(12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Transactions shall not be prohibited Board of Directors of the Company, are necessary or advisable;
(13) any encumbrance or restriction existing by Article VIIreason of any lien permitted under Section 4.12;
(14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions under Section 4.11(b) provided that the terms and conditions of any such encumbrances or restrictions are, in the good faith judgment of the Board of Directors of the Company, no more restrictive in any material respect than those under or pursuant to the agreement so extended, renewed, refinanced or replaced.
Appears in 1 contract
Samples: Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations indebtedness owed to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries;
(ii) make any loans or advances to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries; or
(iii) sell, lease or transfer any of its property properties or assets to the Borrower Issuer or any of its Restricted Subsidiaries.
(b) The restrictions in Section 3.6(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the Issue Date;
(ii) this Indenture, the Notes, the Guarantees, the Security Documents and the Intercreditor Agreement;
(iii) applicable law, rule, regulation or order, including any requirement of any governmental healthcare programs;
(iv) any instrument or agreement governing Indebtedness or Capital Stock of a Restricted Subsidiary acquired by the Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or any of its Subsidiaries, or the property or assets of the Person or any of its Subsidiaries, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(v) customary non-assignment provisions in contracts, leases, subleases, licenses and sublicenses entered into in the ordinary course of business;
(vi) customary restrictions in leases (including capital leases), security agreements or mortgages or other purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property purchased or leased of the nature described in Section 3.6(a)(iii);
(vii) any agreement for the sale or other disposition of all or substantially all the Capital Stock or the assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the sale or other disposition;
(viii) any instrument or agreement governing Permitted Refinancing Indebtedness; provided that the restrictions contained therein are not materially more restrictive (as determined in good faith by the Issuer), taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(ix) Liens permitted to be incurred pursuant to Section 3.5 that limit the right of the debtor to dispose of the assets subject to such Liens;
(x) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xi) customary provisions imposed on the transfer of copyrighted or patented materials;
(xii) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary;
(xiii) 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 property or assets of the Issuer or any Restricted Subsidiary of the Issuer in any manner material to the Issuer or any Restricted Subsidiary of the Issuer;
(xiv) restrictions on the transfer of property or assets required by any regulatory authority having jurisdiction over the Issuer or any Restricted Subsidiary of the Issuer or any of their businesses;
(xv) any instrument or agreement governing Indebtedness or preferred stock of any Restricted Subsidiary that is incurred or issued subsequent to the Issue Date and not in violation of Section 3.4; provided that the Issuer’s Board of Directors determines in good faith that restrictions are not reasonably likely to have a materially adverse effect on the Issuer’s and/or Guarantors’ ability to make principal and interest payments on the Notes;
(xxvi) customary provisions in joint venture and other similar agreements, including agreements related to the ownership and operation of dialysis clinics, relating solely to such joint venture or facilities or the Persons who own Equity Interests therein;
(xvii) any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the Indebtedness, preferred stock, Liens, agreements, contracts, licenses, leases, subleases, instruments or obligations referred to in clauses (i), (ii), (iv) and (xv) of this Section 3.6(b); provided, however, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, (as determined by the Issuer in good faith) than those restrictions contained in the Indebtedness, preferred stock, Liens, agreements, contracts, licenses, leases, subleases, instruments or obligations referred to in clauses (i), (ii), (iv) and (xv) of this Section 3.6(b), as applicable prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing;
(xviii) customary provisions in connection with a Qualified Receivables Transaction; and
(xix) restrictions in Management Agreements that require the payment of management fees to the Issuer or one of its Restricted Subsidiaries prior to payment of dividends or distributions. For purposes of determining compliance with this Section 3.6, (i) the priority of any Preferred Stock preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (yii) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any a Restricted Subsidiary of the Issuer to other Indebtedness Incurred incurred by the Borrower Issuer or any such Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit:
(i) any encumbrance or a restriction pursuant to any credit facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal loans or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIadvances.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility (a) the Senior Facilities Agreement, (b) the Encore Private Placement Notes Agreement, or (c) any other agreement or instrumentinstrument (including the Existing Cabot Notes Indentures the Existing Encore Notes Indentures), in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to the Company or any Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company);
(4) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquiredacquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vii6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii7) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents debt purchase agreements and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(ix) 8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, the terms of any license, authorization, concession or permit or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging ObligationsAgreements;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv11) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof4.09 if (a) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Senior Facilities Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) as is customary in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause Company)or (b), either (a) the Borrower Company determines at the time of entry into such agreement or instrument Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentNotes;
(xv12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Board of Directors of the Company, are necessary or advisable;
(13) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof; or4.12;
(xvi14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to an the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or instrument effecting a refinancing of Indebtedness Incurred pursuant to, replaces the agreements containing the encumbrances or that otherwise refinances, an agreement or instrument referred to in clauses (irestrictions under Section 4.11(b) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, provided that the encumbrances terms and restrictions with respect to such Restricted Subsidiary contained in conditions of any such agreement encumbrances or instrument are restrictions are, in the good faith judgment of the Board of Directors of the Company, no less favorable more restrictive in any material respect than those under or pursuant to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement agreement so extended, renewed, refinanced or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIreplaced.
Appears in 1 contract
Samples: Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility (i) the Credit Agreement or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date (as in effect on the Issue Date);
(2) (i) this Indenture, the Notes and the Note Guarantees or (ii) any encumbrance or restriction pursuant to this Agreementthe Senior Subordinated Notes Indenture, the Collateral Documents Senior Subordinated Notes and the Senior Subordinated Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or orderorder or required by any regulatory authority;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
(Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(Bii) contained in mortgages, pledges, charges or other security agreements or Liens permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale agreements or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted SubsidiaryLiens; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi10) any encumbrance or restriction pursuant to Hedging Obligations;
(xii11) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal principal, premium or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv13) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi14) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(aThe provisions of Section 3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents and Notes or the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv(4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) in respect of other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereofSection 3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi(16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNote Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
(A) : that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) ; contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) ; contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Credit Agreement, together with the Collateral Documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Avaya Holdings Corp.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Issuer will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
Subsidiary (ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; provided it being understood that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(y2) make any loans or advances to the Issuer or any Restricted Subsidiary (it being understood that the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to constitute such an encumbrance make loans or restriction.advances); or
(b3) Section 7.08(a) shall sell, lease or transfer any of its property or assets to the Issuer or any Restricted Subsidiary. The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to any credit facility or any other by reason of an agreement or instrument, in each case, in effect at or entered into on the Closing Initial Issue Date, including, without limitation, this Indenture, the Security Documents, the Intercreditor Agreement or Permitted Letter of Credit Facility in effect on such date;
(ii) any encumbrance or restriction with respect to a Person pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to by reason of an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of Incurred by a Person, entered into Person on or before the date on which such Person was acquired by the Issuer or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a another Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became was acquired by the Issuer or a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such the transaction) and outstanding on such date; provided thatprovided, for that any such encumbrance or restriction shall not extend to any assets or property of the purposes of this clause (iv), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person Issuer or any such other Restricted Subsidiary shall be deemed acquired other than the assets and property so acquired;
(iii) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or assumed by in the Borrower aggregate, detract from the value of, or from the ability of the Issuer and the Restricted Subsidiaries to realize the value of, property or assets of the Issuer or any Restricted Subsidiary when in any manner material to the Issuer or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to, entered into before the date on which such Person becomes Unrestricted Subsidiary became a Restricted Subsidiary; provided, that such agreement was not entered into in anticipation of the Successor CompanyUnrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of the Issuer or any other Restricted Subsidiary other than the assets and property so acquired;
(v) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to an agreement referred to in clauses (i), (ii), (iv) or (xi) of this paragraph or this clause (v) or contained in any amendment, restatement, modification, renewal, supplemental, refunding, replacement or refinancing of an agreement referred to in clauses (i), (ii), (iv) or (xi) of this paragraph or this clause (v); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement taken as a whole are no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in such agreements referred to in clauses (i), (ii), (iv) or (xi) of this paragraph on the Initial Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(vi) in the case of clause (3) of the first paragraph of this Section 4.13, any encumbrance or restriction:
(Aa) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a leaselease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract or agreementcontract, or the assignment or transfer of any leasesuch lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or other contract or agreementcontract;
(Bb) contained in mortgagesMortgages, pledges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents or Indenture securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgagesMortgages, pledges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Dc) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Issuer or any Restricted Subsidiary;
(vid) any encumbrance restrictions on cash or restriction pursuant other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(e) provisions with respect to Purchase Money Obligations the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business;
(a) purchase money obligations for property acquired in the ordinary course of business and (b) Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this Section 4.13 on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(iA) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Borrower Company or any of its Restricted SubsidiarySubsidiaries;
(iiB) make any loans or advances to the Borrower Company or any of its Restricted SubsidiarySubsidiaries; or
(iiiC) sell, lease or transfer any of its property properties or assets to the Borrower Company or any of its Restricted Subsidiary; provided that (x) Subsidiaries. However, the priority of any Preferred Stock in receiving dividends preceding restrictions will not apply to encumbrances or liquidating distributions prior to dividends restrictions existing under or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibitreason of:
(i1) any encumbrance or restriction pursuant to any credit facility or any other agreement or instrument, in each case, Existing Indebtedness as in effect at or entered into on the Closing Datedate hereof;
(ii2) any encumbrance or restriction pursuant to this Agreementthe Take-Out Securities, the Collateral Documents and guarantee thereof by the GuaranteesSubsidiary Guarantor or the Subsidiary Guarantee;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation rules or orderregulations;
(iv4) any encumbrance instrument governing Indebtedness (including Acquired Debt) or restriction pursuant to an agreement or instrument Capital Stock of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was Incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is a party not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that, in the case of Indebtedness, such Indebtedness was permitted to be Incurred by the terms hereof;
(5) non-assignment provisions in leases, licenses or similar agreements entered into in the ordinary course of business or and consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiarypractices;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and purchase money obligations for property acquired in the Collateral Documents, in each case, ordinary course of business that impose encumbrances or restrictions on the property so acquiredacquired of the nature described in clause (C) of the preceding paragraph;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or other disposition to of a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) restricts distributions by that Restricted Subsidiary pending the closing of such its sale or other disposition;
(viii8) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(9) customary provisions with respect to the disposition or distribution of assets or property in leases, licenses, equityholder agreements, joint venture agreements, organizational documents asset sale agreements, stock sale agreements and other similar agreements and instrumentsentered into in the ordinary course of business;
(ix10) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements contracts entered into in the ordinary course of business or consistent with past practicebusiness;
(xi11) the Senior Facilities Agreement as in effect on the date hereof;
(12) restrictions on the transfer of assets subject to any Lien permitted hereunder imposed by the holder of such Lien;
(13) encumbrances or restrictions existing under or arising pursuant to Credit Facilities entered into in accordance herewith; provided that the encumbrances or restrictions in such Credit Facilities are not materially more restrictive to the borrower than those applicable to the borrower under the Senior Facilities Agreement as in effect on the date hereof (other than encumbrances or restrictions in Credit Facilities entered into by a Restricted Subsidiary of the Company to finance some or all of the purchase price of a Restricted Subsidiary and which only apply to the Restricted Subsidiary so acquired and such Restricted Subsidiary's assets);
(14) any Purchase Money Note or other Indebtedness or other contractual requirements of a Receivables Subsidiary in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Subsidiary;
(15) encumbrances or restrictions under Indebtedness incurred by the Restricted Subsidiary owning the assets that comprise the Kildare Hotel and Country Club, which encumbrance or restriction pursuant is not applicable to Hedging Obligations;any other Persons, or the property or assets of any other Person; provided that such Indebtedness was permitted by the terms hereof; and
(xii16) other Indebtedness any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of Foreign Subsidiaries permitted the contracts, instruments or obligations referred to be Incurred in clauses (1) through (15) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility thatrefinancings are, in the good faith determination judgment of the BorrowerBoard of Directors of the Company, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions more restrictive with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole dividend and other payment restrictions than the encumbrances and restrictions those contained in the Initial Agreement dividends or Initial Agreements other payment restrictions prior to which such refinancing or amendment, supplement modification, restatement, renewal, increase, supplement, refunding, replacement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIrefinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary (other than the Issuer or a Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, (ii) the Existing Notes or (iii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date (or otherwise required as of the Issue Date);
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or such agreement or instrument was entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and or Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicepractices;
(xi10) any encumbrance or restriction pursuant to Hedging Obligations;
(xii11) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Existing Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv13) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi14) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, restates, replaces, restructures or refinances, an agreement or instrument referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14) (an “Initial Agreement”) or contained in any amendment, supplement supplement, extension, renewal, restatement, replacement, restructuring or other modification to an agreement referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no not materially less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Cott Corp /Cn/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Borrower, (ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; (provided that (x) the dividend or liquidation priority between classes of Capital Stock, or subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit), except any encumbrance or restriction:
(i) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, instrument in effect at or entered into on the Closing Date, any Credit Facility or any Required Interim Loan Refinancing;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (other than Capital Stock or except to the extent that such Indebtedness Incurred as consideration inwas incurred to finance, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with with, such transaction) and outstanding on such dateacquisition, merger or consolidation); provided that, that for the purposes of this clause (ivii), if another a Person other than the Borrower is the Successor CompanyCompany with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Borrower or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the such Successor Company;
(viii) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (i) or (ii) of this subsection 7.7 or this clause (iii) (an “Initial Agreement”) or contained in any encumbrance amendment, supplement or restriction:other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Lenders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Borrower);
(iv) (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement;
contract, (B) contained in mortgagesby virtue of any transfer of, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower transfer, option or right with respect to, or Lien on, any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such any Restricted Subsidiary that are subject not otherwise prohibited by this Agreement, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to such agreement, the payment rights arising thereunder or extent restricting the proceeds thereof and does not extend to any other asset or property transfer of the Borrower property or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
, (viE) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Borrower or any Restricted Subsidiary in any manner material to the Borrower or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(viiv) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viiivi) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;
(x) authority having jurisdiction over the Borrower or any encumbrance Restricted Subsidiary or restriction on cash any of their businesses, including any such law, rule, regulation, order or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Qualified Securitization Financing Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;Home Warranty Subsidiary; or
(xivvii) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereofsubsection 7.1, (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Borrower), or (bii) if such encumbrance or restriction is not materially more disadvantageous to the Lenders than is customary in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (ax) the Borrower determines at the time of entry into such agreement or instrument in good faith that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the Borrower’s ability to make principal or interest payments on the Secured Obligations Loans or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement Indebtedness, (B) relating to any sale of receivables by or instrument;
Indebtedness of a Foreign Subsidiary or (xvC) any encumbrance relating to Indebtedness of or restriction existing a Financing Disposition by reason or to or in favor of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIISpecial Purpose Entity.
Appears in 1 contract
Samples: Senior Interim Loan Credit Agreement (Servicemaster Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction; provided further that the issuance of such Preferred Stock and the incurrence of such Indebtedness, including payments thereon, otherwise comply with this Indenture.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on or prior to the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents and Notes or the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or orderorder or requirement, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bi) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary (including any Floor Plan Facility) permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ci) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquiredsubject property;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness Indebtedness, permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (b), where either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bA) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Carvana Co.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(aClause (a) shall above will not prohibit:
(i) any encumbrance or restriction pursuant to (A) any credit facility Credit Facility (including the Credit Documents) or (B) any other agreement or instrument, in each case, in effect at or entered into on the Closing Signing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this sub-clause (ivii), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xviiii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses sub-clause (i) to or (xvii) of this Section 7.08(b) above or this sub-clause (xviiii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses sub-clause (i) to or (xvii) of this Section 7.08(b) above or this sub-clause (xviiii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(iv) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Agreement to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(v) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(ix) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(x) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(xi) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Signing Date pursuant to Section 10.1 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (A) the encumbrances and restrictions contained in this Agreement, together with the Security Documents associated therewith as in effect on the Signing Date or (B) in comparable financings (as determined in good faith by the Company) and where, in the case of paragraph (B), the consummation Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Transactions shall not be prohibited Borrowers’ ability to make principal or interest payments on the Loans or Unpaid Drawings;
(xii) [Reserved]; or
(xiii) any encumbrance or restriction existing by Article VIIreason of any Lien permitted under Section 10.3.
Appears in 1 contract
Samples: Secured Term Credit Agreement (NXP Semiconductors N.V.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary (other than a Guarantor) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, (ii) the Existing Notes or (iii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date (or otherwise required as of the Issue Date);
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or such agreement or instrument was entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and or Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicepractices;
(xi10) any encumbrance or restriction pursuant to Hedging Obligations;
(xii11) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Existing Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv13) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi14) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, restates, replaces, restructures or refinances, an agreement or instrument referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14) (an “Initial Agreement”) or contained in any amendment, supplement supplement, extension, renewal, restatement, replacement, restructuring or other modification to an agreement referred to in clauses (i1) to (xv13) of this Section 7.08(b3.4(b) or this clause (xvi14); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no not materially less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Cott Corp /Cn/)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Escrow Release Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents and Notes or the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Issuer or such Restricted Subsidiary that are the subject to of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Issuer or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Escrow Release Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerIssuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness Indebtedness, permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreements, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Escrow Release Date or (bii) in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of clause (bclause(ii), either (aA) the Borrower Issuer determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company and any Permitted Affiliate Parent will not, and shall will not permit any Restricted Subsidiary (other than the Loan Parties) to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Loan Parties) to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company, any Permitted Affiliate Parent or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company, any Permitted Affiliate Parent or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company, any Permitted Affiliate Parent or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (y) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Borrower Company, any Permitted Affiliate Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company, any Permitted Affiliate Parent or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall The preceding provisions will not prohibit:
(i1) any encumbrance or restriction pursuant to an agreement in effect at, entered into or substantially agreed on the Amendment Effective Date, including, without limitation, this Agreement, the Existing Senior Secured Notes Indenture, the Intercreditor Agreement and any credit facility or any other agreement or instrumentrelated documentation, in each case, as in effect at effect, or entered into substantially agreed, on the Closing Amendment Effective Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into Incurred on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company, a Permitted Affiliate Parent or any Restricted Subsidiary, or was designated as a Permitted Affiliate Parent, an Affiliate Subsidiary or a Restricted Subsidiary (or on became a Restricted Subsidiary as a result thereof), or which such agreement or instrument is assumed by the Borrower Company, a Permitted Affiliate Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company, a Permitted Affiliate Parent or a Restricted Subsidiary or was merged, merged or consolidated or otherwise combined with or into the Borrower Company, a Permitted Affiliate Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided thatthat any such encumbrance or restriction shall not extend to any assets or property of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary other than the assets and property so acquired; provided, further, that for the purposes of this clause (ivSection 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company, a Permitted Affiliate Parent or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3) or contained in any amendment, supplement, restatement or other modification to an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3); provided that the encumbrances and restrictions, taken as a whole, with respect to the Company, such Permitted Affiliate Parent or such Restricted Subsidiary contained in any such agreement are no less favorable in any material respect to the Finance Parties than the encumbrances and restrictions contained in such agreements referred to in Section 4.08(b)(1) or Section 4.08(b)(2) (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(4) in the case of Section 4.08(a)(3), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any such lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledges, charges or other security agreements Liens permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower Company, a Permitted Affiliate Parent or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company, a Permitted Affiliate Parent or any Restricted Subsidiary; or
(D) contained in operating leases for real property and restricting only the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent;
(vi5) any encumbrance or restriction pursuant to (A) Purchase Money Obligations and for property acquired in the ordinary course of business or (B) Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsAgreement, in each case, that either (i) impose encumbrances or restrictions of the nature described in Section 4.08(a)(3) on the property so acquiredacquired or (ii) are customary in connection with Purchase Money Obligations, Capitalized Lease Obligations and mortgage financings for property acquired in the ordinary course of business (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(vii6) any encumbrance or restriction arising in connection with, or any contractual requirement Incurred with respect to, any Purchase Money Note, other Indebtedness or a Qualified Receivables Transaction relating exclusively to a Receivables Entity that, in the good faith determination of the Board of Directors or senior management of the Company or a Permitted Affiliate Parent, are necessary to effect such Qualified Receivables Transaction;
(7) any encumbrance or restriction (A) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement (or option to enter into such agreement) entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositiondisposition or (B) arising by reason of contracts for the sale of assets, including customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale and disposition of all or substantially all assets of such Subsidiary or conditions imposed by governmental authorities or otherwise resulting from dispositions required by governmental authorities;
(viii8) (A) customary provisions in leases, licenses, equityholder asset sale agreements, joint venture agreementsagreements and other agreements and instruments entered into by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in the ordinary course of business or (B) in the case of a joint venture or a Subsidiary that is not a Wholly-Owned Subsidiary, encumbrances, restrictions and conditions imposed by its organizational documents and or any related shareholders, joint venture or other similar agreements and instruments(including restrictions on the payment of dividends or other distributions);
(ix9) encumbrances or restrictions arising or existing by reason of applicable law Law or any applicable rule, regulation or regulation, governmental license, order, concession, franchise, or permit or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi11) any encumbrance or restriction pursuant to Hedging ObligationsCurrency Agreements, Commodity Agreements or Interest Rate Agreements;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Amendment Effective Date pursuant to the provisions of Section 7.03 hereof4.09 if (A) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Finance Parties than (a) the encumbrances and restrictions contained in this Agreement, the other Loan Documents or the First-Priority Senior Secured Note Documents Documents, and any related documentation, in each case, as in effect on the Closing Amendment Effective Date (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent) or (bB) such encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Finance Parties than is customary in comparable financings (as determined conclusively in good faith by the BorrowerBoard of Directors or senior management of the Company or a Permitted Affiliate Parent) and whereand, in the case of clause (b)each case, either (ai) the Borrower determines at the time of entry into such agreement Company or instrument a Permitted Affiliate Parent reasonably believes that such encumbrances or and restrictions will not adversely affect, in any material respect, materially affect the Borrower’s Borrowers’ ability to make principal or interest payments on the Secured Obligations Loans as and when they come due or (bii) such encumbrance or restriction applies encumbrances and restrictions apply only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement or instrumentIndebtedness;
(xv13) any encumbrance or restriction existing arising by reason of any Lien permitted under Section 7.01 hereofcustomary non-assignment provisions in agreements; orand
(xvi14) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial any Intercreditor Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(iA) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(iiB) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iiiC) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (y) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall The provisions of the preceding paragraph will not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility, this Indenture, any Senior Notes, the Senior Indenture, any Senior Subordinated Notes, or any other agreement or instrument, in each case, instrument in effect at or entered into on the Closing Datedate of this Indenture;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, merged or consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such the transaction) and outstanding on such date; , provided that, for the purposes of this clause (ivSection 4.9(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Sections 4.9(b)(1) or (2) or this Section 4.9(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Sections 4.9(b)(1) or (2) or this Section 4.9(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the holders of the Senior Subordinated Notes taken as a whole than the encumbrances and restrictions contained in such agreements and instruments referred to in Sections 4.9(b)(1) or (2) (as determined in good faith by the Company);
(4) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreementcontract;
(B) (x) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary or (y) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi5) any encumbrance or restriction pursuant to (a) Purchase Money Obligations and (b) Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property or assets so acquired;
(vii6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii7) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(ix) 8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi10) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary;
(11) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Obligations;Agreements; or
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (a) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof4.3, (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders of the Senior Subordinated Notes than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Company), or (bii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Senior Subordinated Notes than is customary in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (b), either (ax) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the BorrowerCompany’s ability to (or to cause eircom Funding to) make principal or interest payments on the Secured Obligations Senior Subordinated Notes as and when they come due or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant toIndebtedness, or that otherwise refinances, an agreement (b) relating to any working capital Indebtedness or instrument referred sale of receivables by a Foreign Subsidiary or to in clauses (i) Indebtedness of or a Financing Disposition to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in by any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIReceivables Entity.
Appears in 1 contract
Samples: Senior Subordinated Indenture (Valentia Telecommunications)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility and the 2017 Notes or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date (or otherwise required as of the Issue Date);
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes, the Exchange Notes and the GuaranteesGuarantees of the Notes;
(iii3) encumbrances or restrictions arising or existing by reason of applicable law or any encumbrance or restriction pursuant to applicable law, rule, regulation or order, or required by any regulatory authority;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Issuer or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi10) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv11) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.of
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Issuer will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
: (i1) pay dividends or make any other distributions to the Issuer or any Restricted Subsidiary that is a Subsidiary Guarantor in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
Subsidiary that is a Subsidiary Guarantor; (ii2) Guarantor; or make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
Subsidiary that is a Subsidiary (iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted SubsidiarySubsidi-ary that is a Subsidiary Guarantor; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends divi-dends or liquidating distributions being paid on common stock and (y) the subordination of (including the application applica-tion of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary that is a Subsidiary Guarantor to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary that is a Subsidiary Guarantor shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a3.4(a) shall not prohibit:
: (i1) any encumbrance or restriction pursuant to (x) any credit facility Credit Facility (including the Credit Agreement), or (y) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date (or contractual encumbrances or restrictions with respect to the Transactions in effect on the Escrow Release Date;
); (ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Guarantees;
Note Guar-antees; (iii3) any encumbrance encumbrances or restriction pursuant to restrictions arising or existing by reason of applicable law, rule, regulation regula-tion or order;
, or required by any regulatory authority; (iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating re-lating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Re-stricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized uti-lized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another anoth-er Person is the Successor Companysuccessor entity, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
successor entity; (v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment assign-ment or transfer of any lease, license or other contract or agreement;; -76-
(Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance encum-brance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests inter-ests set forth in any reciprocal easement agreements of the Borrower Issuer or any Restricted Subsidiary;
; (vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
, any replacements of such property or assets and additions and accessions thereto, after-acquired property subject to such arrangement, the proceeds and the products thereof and customary security deposits in respect thereof and in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender; (vii7) any encumbrance or restriction imposed on the Capital Stock or assets of the Issuer or any Restricted Subsidiary pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the such Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
; (viii) 8) customary provisions in leases, subleases, licenses, equityholder sublicenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
; (ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable appli-cable rule, regulation or order, or required by any regulatory authority;
; (x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers cus-tomers under agreements entered into in the ordinary course of business or consistent with past practice;
; (xi11) any encumbrance or restriction pursuant to Hedging Obligations;
; (xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries Non-Guarantors permitted to be Incurred or issued subsequent to the Closing Escrow Release Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries Non-Guarantors party thereto or their Subsidiaries;
; (xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Receiv-xxxxx Facility that, in the good faith determination of the BorrowerIssuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
, as the case may be; (xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating which, if it relates to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent pur-suant to the Closing Date pursuant to the provisions of Section 7.03 hereof3.2) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole (i) are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Escrow Release Date or (b) in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of clause or (b), ii) either (aA) the Borrower Issuer determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will do not adversely affect, in any material respect, materially impair the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes as and when due (as determined in good faith by the Issuer) or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
; (xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
or (xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing refi-nancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.re--77-
Appears in 1 contract
Samples: Indenture (Diversey Holdings, Ltd.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNote Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (GrubHub Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Borrowers will not, and shall will not permit any Restricted Subsidiary of any Borrower to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
of any Borrower to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the any Borrower or any Restricted Subsidiary;
Subsidiary of any Borrower, (ii) make any loans or advances to the any Borrower or any Restricted Subsidiary; or
Subsidiary of any Borrower or (iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or of any Restricted Subsidiary shall not be deemed to constitute such an Borrower, except any encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit:
(ia) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, instrument as in effect at or entered into on the Closing Datedate hereof, including without limitation the Cash Flow Term Facility and the Subordinated Notes Purchase Agreement;
(iib) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Capital Indebtedness or Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the U.S. Parent Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such 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 Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation) and not applying to the U.S. Parent Borrower or any of the Restricted Subsidiaries (other than Capital Stock to any such Person or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions assets so acquired);
(c) pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), if another Person is the Successor Company, any Subsidiary thereof or an agreement or instrument of such Person replacing or contained in any amendment, supplement or other modification to an agreement referred to in clause (a) or (b) above; provided, however, that the encumbrances and restrictions contained in any such Subsidiary shall be deemed acquired replacement agreement or assumed by amendment taken as a whole are not materially less favorable to the Borrower or any Restricted Subsidiary when Lenders than encumbrances and restrictions contained in such Person becomes the Successor Companyoriginal agreement;
(vd) 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 agreementcontract, or the assignment or transfer of any lease, license or other contract contract, (ii) by virtue of any transfer of, agreement to transfer, option or agreement;
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, (Biii) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict restricting the transfer or encumbrance of the property or assets subject to such mortgagesthereto, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Div) pursuant to customary provisions restricting dispositions of real property Real Estate interests set forth in any reciprocal easement agreements of the U.S. Parent Borrower or any Restricted Subsidiary;
, or (viv) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, purchase money Indebtedness that impose encumbrances or restrictions on the property or assets so acquired;
(viie) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viiif) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authorityauthority having jurisdiction over the U.S. Parent Borrower or any Restricted Subsidiary or any of their businesses;
(xg) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
an agreement or instrument (xiii) other relating to any Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that9.1, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as agreements set forth in effect on the Closing Date or clause (ba) in comparable financings above (as determined in good faith by the U.S. Parent Borrower);
(h) restrictions and where, in conditions on any Foreign Subsidiary by the case terms of clause any Indebtedness of such Foreign Subsidiary permitted to be incurred hereunder;
(b), either (ai) the Borrower determines 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 entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of Person becoming a default in respect of a payment relating to such agreement or instrumentRestricted Subsidiary;
(xvj) any encumbrance or restriction existing by reason of any Lien customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under Section 7.01 hereof; or9.5 and applicable solely to such joint venture;
(xvik) negative pledges and restrictions on Liens in favor of any encumbrance holder of Indebtedness permitted under Section 9.1 but only if such negative pledge or restriction pursuant to an agreement or instrument effecting a refinancing expressly permits Liens for the benefit of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances Administrative Agent and/or the Collateral Agent and restrictions the Lenders with respect to the credit facilities established hereunder and the Obligations under the Credit Documents on a senior basis and without a requirement that such Restricted Subsidiary contained in any holders of such agreement Indebtedness be secured by such Liens equally and ratably or instrument are no less favorable in any material respect to the Lenders taken as on a whole than the encumbrances and junior basis;
(l) restrictions contained on cash, other deposits or net worth imposed by customers under contracts entered into in the Initial Agreement or Initial Agreements ordinary course of business;
(m) Secured Indebtedness otherwise permitted to which such refinancing or amendment, supplement or other modification relates be incurred under Sections 9.1(f) and (as determined in good faith by j) that limit the Borrower). Notwithstanding any other provision to the contrary, the consummation right of the Transactions shall not be prohibited by Article VIIobligor to dispose of the assets securing such Indebtedness; and
(n) customary provisions in leases, subleases, licenses, sublicenses and other contracts restricting the assignment thereof, in each case entered into in the ordinary course of business.
Appears in 1 contract
Samples: Abl Credit Agreement (Univar Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, (ii) the Existing Notes, including any Guarantee thereof, or (iii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents ABL and the Existing Notes Indentures, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bclause(ii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Holdings shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Holdings or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Holdings or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Holdings or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Holdings or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Holdings or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility, the Existing Convertible Notes, including any Guarantee thereof, or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNote Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Holdings or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Holdings or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Holdings or was merged, consolidated or otherwise combined with or into the Borrower Holdings or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Holdings or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Holdings or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Holdings or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Holdings or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Holdings or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Holdings or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Finance Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Holdings or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerHoldings, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents First Lien Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerHoldings) and where, in the case of clause (bii), either (aA) the Borrower Holdings determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to through (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to through (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerHoldings). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Wayfair Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents and Notes or the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv4), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; (Ciii) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Agreement, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facilities or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
(Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents Joint Venture agreements and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created any encumbrance or restriction existing under or by reason of (a) Indebtedness or other contractual requirements of a Securitization Entity or any Standard Securitization Undertaking, in each case in connection with any a Qualified Securitization Financing Transaction; provided that such restrictions apply only to such, or a related, Securitization Entity and Financeable Assets and Cash and Cash Equivalents held by such, or a related, Securitization Entity or (b) Permitted Warehousing Indebtedness; provided that such restrictions apply only to the Receivables financed by the applicable Warehousing Facility that, in the good faith determination of the Borrower, are necessary pursuant to which such Permitted Warehousing Indebtedness was Incurred or advisable Cash and Cash Equivalents related to effect such Securitization Facility or Receivables Warehousing Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (b), where either (aA) the Borrower Company determines at the time of entry into issuance of such agreement or instrument Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentIndebtedness;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b) or this clause (xvib) (an “Initial Agreement”) or contained in any amendment, extension, renewal, restatement, refunding, replacement, refinancing, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(bclause (b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall KP Parent will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower KP Parent or any Restricted Subsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to KP Parent or any other Restricted Subsidiary;
(ii) make any loans or advances to the Borrower KP Parent or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower KP Parent or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower KP Parent or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower KP Parent or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.04(a) shall will not prohibit:
(i) any encumbrance or restriction pursuant to (A) any credit facility Credit Facility (including the Senior Secured Credit Facilities Agreement), or the Intercreditor Agreement, any Additional Intercreditor Agreement or the Security Documents or (B) any other agreement or instrument, in each casecase described in (A) or (B), in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower KP Parent or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower KP Parent or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower KP Parent or was merged, consolidated or otherwise combined with or into the Borrower KP Parent or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.04(b)(ii), if another Person is the Successor Companysuccessor Person (as described in Section 5.01), any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower KP Parent or any Restricted Subsidiary when such Person becomes the Successor Companysuch successor Person; provided further, that, in the case of Indebtedness, such Indebtedness was permitted to be Incurred under this Indenture;
(viii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clause (i) or (ii) of this Section 4.04(b) or this Section 4.04(a)(iii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clause (i) or (ii) of this Section 4.04(b) or this Section 4.04(b)(iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Board of Directors or a member of Senior Management of KP Parent);
(iv) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledgescharges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower KP Parent or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledgescharges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower KP Parent or any Restricted Subsidiary;
(viv) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquiredacquired in the nature of those described in Section 4.04(a)(iii), or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the distribution or transfer of the assets or Capital Stock of the joint venture;
(viivi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viiivii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(ixviii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(xix) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xix) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging ObligationsAgreements;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xivxi) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 4.01 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders of the Notes than (a1) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents Credit Facilities Agreement, together with the Security Documents, and the Intercreditor Agreement, in each case, as in effect on the Closing Issue Date or (b2) as is customary in comparable financings (as determined in good faith by the BorrowerBoard of Directors or a member of Senior Management of KP Parent) and whereor (B) constituting an Additional Intercreditor Agreement;
(xii) restrictions effected in connection with a Qualified Receivables Financing that, in the case good faith determination of clause (b)the Board of Directors or a member of Senior Management of KP Parent, either (a) the Borrower determines at the time of entry into are necessary or advisable to effect such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;Qualified Receivables Financing; or
(xvxiii) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII4.03.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Dutch Company and U.S. Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted SubsidiaryDutch Company and U.S. Company;
(ii2) make any loans or advances to the Borrower or any Restricted SubsidiaryDutch Company and U.S. Company; or
(iii3) sell, lease or transfer any of its property or assets to Dutch Company and U.S. Company, U.S. Company, the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.05(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (A) any credit facility or Credit Facility (including the SS Term Loan), this Indenture, the Notes and the Guarantees thereof, the Existing Notes Indenture, the Existing Notes and the Guarantees thereof, the Intercreditor Agreement, any Additional Intercreditor Agreement, the Security Documents, the Shareholder Loan and the other documents relating to the Transactions, (B) any other agreement agreement, amendment or instrument, in each case, in effect at or entered into on the Closing DateIssue Date or (C) the Escrow Agreement;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into Dutch Company, U.S. Company, the Borrower Issuer or any other Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by Dutch Company, U.S. Company, the Borrower Issuer or any other Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Dutch Company or was merged, consolidated or otherwise combined with or into Dutch Company, U.S. Company, the Borrower Issuer or any other Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.05(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by Dutch Company, U.S. Company, the Borrower Issuer or any other Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in Sections 4.05(b)(1), (2) or (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Sections 4.05(b)(1), (2) or (3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by Dutch Company);
(4) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(5) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of Dutch Company, U.S. Company, the Borrower Issuer or a any other Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of Dutch Company, U.S. Company, the Borrower Issuer or any other Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquiredacquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vii7) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging ObligationsAgreements;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv11) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 4.06 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the SS Term Loan Documents or Agreement and the First-Priority Senior Secured Note Documents Intercreditor Agreement, together with the security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerDutch Company) and where, in the case of clause (b), either (a) the Borrower or where Dutch Company determines at the time of entry into when such agreement or instrument Indebtedness is Incurred that such encumbrances or restrictions will shall not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrumentNotes;
(xv12) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof4.09;
(13) restrictions effected in connection with a Qualified Receivables Financing that, in the good faith determination of the Board of Directors of Dutch Company, U.S. Company or any Parent Holding Company, are necessary or advisable to effect such Qualified Receivables Financing;
(14) restrictions arising or agreed to in the ordinary course of business, not relating to any Indebtedness, where Dutch Company determines that they will not, individually or in the aggregate, adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes; or
(xvi15) any encumbrance encumbrances or restriction pursuant to an agreement or instrument effecting a refinancing restrictions of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument the type referred to in clauses Sections 4.05(a)(1), (i2) to and (xv3) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of this Section 7.08(b) the contracts, instruments or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement obligations referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xviSections 4.05(b)(1)–(14); providedprovided that such amendments, howevermodifications, that restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the encumbrances and restrictions good faith judgment of Dutch Company, not materially more restrictive as a whole with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole dividend and other payment restrictions than the encumbrances and restrictions those contained in the Initial Agreement dividend or Initial Agreements other payment restrictions prior to which such refinancing or amendment, supplement modification, restatement, renewal, increase, supplement, refunding, replacement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIrefinancing.
Appears in 1 contract
Samples: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility (including the Senior Finance Documents) or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date, including the indentures governing the Super Priority Notes, the Existing Secured Notes and the Existing Unsecured Notes;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b4.08(b)(1), 4.08(b)(2) or this clause (xvi4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b4.08(b)(1), 4.08(b)(2) or this clause (xvi4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument (a) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.05 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith, as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of clause (ii), the consummation Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Transactions shall not be prohibited Issuers’ ability to make principal or interest payments on the Notes; or
(12) any encumbrance or restriction existing by Article VIIreason of any lien permitted under Section 4.07.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(ba) The provisions of Section 7.08(a4.08(a) shall hereof will not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date (or otherwise required as of the Issue Date);
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) encumbrances or restrictions arising or existing by reason of applicable law or any encumbrance or restriction pursuant to applicable law, rule, regulation or order, or required by any regulatory authority;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
(Aa) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(Bb) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Dc) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Radio One, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility (including the Senior Finance Documents) or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date, including the indentures governing the Existing Secured Notes and the agreement governing the Term Loans;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b4.08(b)(1), 4.08(b)(2) or this clause (xvi4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b4.08(b)(1), 4.08(b)(2) or this clause (xvi4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument (a) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.05 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Revolving Credit Agreement, together with the security documents associated therewith, as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of clause (ii), the consummation Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Transactions shall not be prohibited Issuers’ ability to make principal or interest payments on the Notes; or
(12) any encumbrance or restriction existing by Article VIIreason of any lien permitted under Section 4.07.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Issuer will not, and shall will not permit any Restricted Subsidiary that is not a Guarantor to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(i1) pay dividends or make any other distributions to the Issuer or any of its Restricted Subsidiaries that is a Guarantor in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries that is a Guarantor;
(ii2) make any loans or advances to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries that is a Guarantor; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any of its Restricted SubsidiarySubsidiaries that is a Guarantor; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any of its Restricted Subsidiary Subsidiaries to other Indebtedness Incurred by the Borrower Issuer or any of its Restricted Subsidiary Subsidiaries shall not be deemed not to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit:
(i) any encumbrance or restriction pursuant to any credit facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Surgery Partners, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNote Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
(Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Permitted Funding Indebtedness, Permitted Securitization Financing Indebtedness or Receivables Facility Credit Enhancement Agreements that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Permitted Funding Indebtedness or Permitted Securitization Facility or Receivables FacilityIndebtedness;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents Credit Facilities, together with the security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (a) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi)clause; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (loanDepot, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(ia) pay dividends or make any other distributions on or in cash or otherwise on respect of its Capital Stock to the Company or any other Restricted Subsidiary or pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(b) make loans or advances to, or guarantee any Indebtedness or other obligations owed to of, or make any Investment in, the Borrower Company or any Restricted Subsidiary;
(ii) make any loans or advances to the Borrower or any other Restricted Subsidiary; or
(iiic) sell, lease or transfer any of its property or assets to the Borrower Company or any other Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends , except for such encumbrances or liquidating distributions prior to dividends restrictions existing under or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibitreason of:
(i1) any encumbrance or restriction pursuant to any credit facility or any other agreement or instrument, in each case, applicable law;
(2) this Indenture;
(3) the Senior Credit Facilities as in effect at or entered into on the Closing Issue Date, and any amendments, refinancings, replacements or restatements thereof; PROVIDED, HOWEVER, that any such amendment, refinancing, replacement or restatement is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date;
(ii4) customary non-assignment provisions of any encumbrance contract and customary provisions restricting assignment or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) subletting in any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument lease governing a leasehold interest of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or on otherwise transfer any asset which secures purchase money Indebtedness of such agreement Restricted Subsidiary;
(5) any instrument governing Acquired Indebtedness, which encumbrance or instrument restriction is assumed by not applicable to any Person, or the Borrower properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(6) restrictions with respect to a Restricted Subsidiary in connection with an acquisition of assets (other than the Company imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or Indebtedness Incurred as consideration inassets of such Subsidiary; provided, however, that such restrictions apply solely to the Capital Stock or to provide all or any portion assets of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Companywhich are being sold;
(v7) any customary restrictions imposed on the transfer of copyrighted or patented materials;
(8) secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.08 and Section 4.15, which encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of restriction is not applicable to any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or assets other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of than the property or assets subject to the Lien securing such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted SubsidiaryIndebtedness; or
(D9) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses clause (i) to 3), (xv) of this Section 7.08(b5) or this clause (xvi)8) above; provided, however, that the encumbrances and restrictions such refinancing agreement is not materially more restrictive with respect to such Restricted Subsidiary contained in any such agreement encumbrances or instrument are no less favorable in any material respect to the Lenders taken as a whole restrictions than the encumbrances and restrictions those contained in the Initial Agreement agreement referred to in such clause (3), (5) or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (8) as determined by the Board of Directors in their reasonable good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIjudgment.
Appears in 1 contract
Samples: Indenture (Paragon Trade Brands Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall will not, and shall will not permit any Material Restricted Subsidiary to, to create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary;
Borrower, (ii) make any loans or advances to the Borrower or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary; (provided that (x) the dividend or liquidation priority between classes of Capital Stock, or subordination of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of obligation (including the application of any standstill requirements toremedy bars thereto) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall not prohibit), except any encumbrance or restriction:
(ia) any encumbrance or restriction pursuant to any credit facility or any other an agreement or instrument, in each case, instrument in effect at or entered into on the Closing Date, any Credit Facility (including without limitation, the Revolving Facility), the Senior Interim Loan Facility, the Existing Notes Indenture and the Existing Notes;
(iib) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person Person, or relating to any Indebtedness or Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was is acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (other than Capital Stock or except to the extent that such Indebtedness Incurred as consideration inwas incurred to finance, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with with, such transaction) and outstanding on such dateacquisition, merger or consolidation); provided that, that for the purposes of this clause (ivsubsection 7.9(b), if another a Person other than the Borrower is the Successor CompanyCompany with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed assumed, as the case may be, by the Borrower or any a Restricted Subsidiary Subsidiary, as the case may be, when such Person becomes the such Successor Company;
(vc) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in subsections 7.9(a) or (b) above or this subsection 7.9(c) (an “Initial Agreement”) or contained in any encumbrance amendment, supplement or restriction:other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Lenders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Borrower);
(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 agreementcontract, or the assignment or transfer of any lease, license or other contract or agreement;
contract, (Bii) contained in mortgagesby virtue of any transfer of, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower transfer, option or right with respect to, or Lien on, any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such any Restricted Subsidiary that are subject not otherwise prohibited by this Agreement, (iii) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to such agreement, the payment rights arising thereunder or extent restricting the proceeds thereof and does not extend to any other asset or property transfer of the Borrower property or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
subject thereto, (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
, (viv) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property or assets so acquired, (vi) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (vii) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements, (viii) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Borrower or any Restricted Subsidiary in any manner material to the Borrower or such Restricted Subsidiary, or (ix) pursuant to Hedging Obligations;
(viie) with respect to a Restricted Subsidiary (or any encumbrance of its property or restriction assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viiif) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;
(x) authority having jurisdiction over the Borrower or any encumbrance Restricted Subsidiary or restriction on cash any of their businesses, including any such law, rule, regulation, order or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Qualified Securitization Financing Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;Home Warranty Subsidiary; or
(xivg) any encumbrance or restriction arising pursuant to an agreement or instrument (i) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereofsubsection 7.1, (A) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Borrower), or (bB) if such encumbrance or restriction is not materially more disadvantageous to the Lenders than is customary in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (ax) the Borrower determines at the time of entry into such agreement or instrument in good faith that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the Borrower’s ability to make principal or interest payments on the Secured Term Loans and Reimbursement Obligations owing under the LC Facility or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement Indebtedness, (ii) relating to any sale of receivables by or instrument;
Indebtedness of a Foreign Subsidiary or (xviii) any encumbrance relating to Indebtedness of or restriction existing a Financing Disposition by reason or to or in favor of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIISpecial Purpose Entity.
Appears in 1 contract
Samples: Credit Agreement (Servicemaster Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(iA) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(iiB) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iiiC) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility (a) the Senior Facilities Agreement or (b) any other agreement or instrumentinstrument (including the Existing Notes Indentures), in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (iSection 4.08(b)(1) to (xv) of this or Section 7.08(b4.08(b)(2) or this clause (xviSection 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such the Company or any Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements, debt purchase agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, the consummation terms of any license, authorization, concession or permit or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.09 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of this clause (ii), the Company determines at the time such Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes or the ability of Holdings to make principal or interest payments on the Proceeds Loan;
(12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Transactions shall not be prohibited Board of Directors of the Company, are necessary or advisable;
(13) any encumbrance or restriction existing by Article VIIreason of any lien permitted under Section 4.12;
(14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions under Section SECTION 4.11. (b) provided that the terms and conditions of any such encumbrances or restrictions are, in the good faith judgment of the Board of Directors of the Company, no more restrictive in any material respect than those under or pursuant to the agreement so extended, renewed, refinanced or replaced.
Appears in 1 contract
Samples: Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Issuer shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Issuer or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of clause (a) of this Section 7.08(a) 3.4 shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv3) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Issuer or was merged, consolidated or otherwise combined with or into the Borrower Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Issuer or any Restricted Subsidiary when such Person becomes the Successor Company;
(v4) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Issuer or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Issuer or any Restricted Subsidiary;
(vi5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii6) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii7) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(ix) 8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi10) any encumbrance or restriction pursuant to Hedging Obligations;
(xii11) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of the covenant described in Section 7.03 3.2 hereof that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii12) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerIssuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv13) any encumbrance or restriction arising pursuant to an agreement or instrument (relating which, if it relates to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof3.2) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole (i) are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (b) in comparable financings (as determined in good faith by the BorrowerIssuer) and where, in the case of clause or (bii), either (aA) the Borrower Issuer determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv14) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi15) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv14) of this Section 7.08(b3.4(b) or this clause (xvi15) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv14) of this Section 7.08(b3.4(b) or this clause (xvi15); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerIssuer). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Igate Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall will not prohibit:
(i1) any encumbrance or restriction pursuant to (a) any credit facility Credit Facility (including the Senior Finance Documents) or (b) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b4.08(b)(1), 4.08(b)(2) or this clause (xvi4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b4.08(b)(1), 4.08(b)(2) or this clause (xvi4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(4) any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(b) contained in mortgages, pledges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements; or
(c) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(11) any encumbrance or restriction arising pursuant to an agreement or instrument (a) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.05 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Facilities Agreement, together with the security documents associated therewith, as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of clause (ii), the consummation Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Transactions shall not be prohibited Issuers’ ability to make principal or interest payments on the Notes; or
(12) any encumbrance or restriction existing by Article VIIreason of any lien permitted under Section 4.07.
Appears in 1 contract
Samples: Senior Secured Indenture (NXP Manufacturing (Thailand) Co., Ltd.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility or any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the GuaranteesNote Documents;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
(Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(Ciii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Financing Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Permitted Funding Indebtedness, Permitted Securitization Financing Indebtedness or Receivables Facility Credit Enhancement Agreements that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Permitted Funding Indebtedness or Permitted Securitization Facility or Receivables FacilityIndebtedness;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof3.2 if (a) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (a) the encumbrances and restrictions contained (i) in any Credit Facilities, together with the Loan Documents security documents associated therewith, or the First-Priority Senior Secured Note Documents this Indenture as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the Borrower) and whereCompany), in the case of clause (b), either (a) the Borrower Company determines in good faith at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bc) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses (i) to (xv) of this Section 7.08(b) above or this clause (xvi)clause; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (loanDepot, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(iA) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(iiB) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iiiC) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock Common Stock and (y) the subordination of (including but not limited to, the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(a) shall The provisions of the preceding paragraph will not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility Credit Facility, this Indenture, any Senior Notes, the Senior Subordinated Indenture, any Senior Subordinated Notes, or any other agreement or instrument, in each case, instrument in effect at or entered into on the Closing Datedate of this Indenture;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, merged or consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, merged or consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such the transaction) and outstanding on such date; , provided that, for the purposes of this clause (ivSection 4.9(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Sections 4.9(b)(1) or (2) or this Section 4.9(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Sections 4.9(b)(1) or (2) or this Section 4.9(b)(3); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the holders of the Senior Notes taken as a whole than the encumbrances and restrictions contained in such agreements and instruments referred to in Sections 4.9(b)(1) or (2) (as determined in good faith by the Company);
(4) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreementcontract;
(B) (x) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary or (y) contained in mortgages, pledges, charges pledges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges pledges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi5) any encumbrance or restriction pursuant to (a) Purchase Money Obligations and (b) Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property or assets so acquired;
(vii6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii7) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents agreements and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(ix) 8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi10) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary;
(11) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Obligations;Agreements; or
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv12) any encumbrance or restriction arising pursuant to an agreement or instrument (a) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof4.3, (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders of the Senior Notes than (a) the encumbrances and restrictions contained in the Loan Documents or Initial Agreements (as determined in good faith by the First-Priority Senior Secured Note Documents as in effect on the Closing Date Company), or (bii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Senior Notes than is customary in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (b), either (ax) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances encumbrance or restrictions restriction will not adversely affect, in any material respect, materially affect the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Senior Notes as and when they come due or (by) such encumbrance or restriction applies only during the continuance of if a default occurs in respect of a payment or financial covenant relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant toIndebtedness, or that otherwise refinances, an agreement (b) relating to any working capital Indebtedness or instrument referred sale of receivables by a Foreign Subsidiary or to in clauses (i) Indebtedness of or a Financing Disposition to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in by any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIReceivables Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; , provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a4.08(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to any credit facility (a) the Senior Facilities Agreement or (b) any other agreement or instrumentinstrument (including the Existing Notes Indentures), in each case, in effect at or entered into on the Closing Issue Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv2) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (ivSection 4.08(b)(2), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v3) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3); provided, however, that the encumbrances and restrictions with respect to the Company or any Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company);
(4) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreementcontract, or the assignment or transfer of any lease, license or other contract or agreementcontract;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquiredacquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vii6) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii7) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents debt purchase agreements and other similar agreements and instrumentsinstruments entered into in the ordinary course of business;
(ix) 8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, the terms of any license, authorization, concession or permit or required by any regulatory authority;
(x9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under agreements entered into in the ordinary course of business or consistent with past practicebusiness;
(xi10) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging ObligationsAgreements;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv11) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof4.09 if (a) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Senior Facilities Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) as is customary in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause Company)or (b), either (a) the Borrower Company determines at the time of entry into such agreement or instrument Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or the ability of Cabot (bTreasury) such encumbrance Ireland to make principal or restriction applies only during interest payments on the continuance of a default in respect of a payment relating to such agreement or instrumentProceeds Loan;
(xv12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Board of Directors of the Company, are necessary or advisable;
(13) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof; or4.12;
(xvi14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to an the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or instrument effecting a refinancing of Indebtedness Incurred pursuant to, replaces the agreements containing the encumbrances or that otherwise refinances, an agreement or instrument referred to in clauses (irestrictions under Section 4.11(b) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, provided that the encumbrances terms and restrictions with respect to such Restricted Subsidiary contained in conditions of any such agreement encumbrances or instrument are restrictions are, in the good faith judgment of the Board of Directors of the Company, no less favorable more restrictive in any material respect than those under or pursuant to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement agreement so extended, renewed, refinanced or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VIIreplaced.
Appears in 1 contract
Samples: Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, (ii) the Convertible Notes or (iii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv3), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Company or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
; or (C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Company or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerCompany, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or Credit Agreement, together with the First-Priority Senior Secured Note Documents security documents associated therewith as in effect on the Closing Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerCompany) and where, in the case of clause (bii), either (aA) the Borrower Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerCompany’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (TUTOR PERINI Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
: (i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
; (ii2) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
or (iii3) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted SubsidiarySub- sidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends divi- dends or liquidating distributions being paid on common stock and (y) the subordination of (including the application applica- tion of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance en- cumbrance or restriction.
(b) The provisions of Section 7.08(a3.4
(a) shall not prohibit:
: (i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility, or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
; (ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents Notes and the Note Guarantees;
; (iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv3) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating re- lating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, amalgamated, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, amalgamated, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv3), if another Person is the Successor Company, any Subsidiary Subsidi- ary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor CompanyCompa- ny;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xvi) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) to (xv) of this Section 7.08(b) or this clause (xvi); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (Townsquare Media, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Parent Guarantor or any Restricted Subsidiary;
(ii2) make any loans or advances to the Borrower Parent Guarantor or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Borrower Parent Guarantor or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Parent Guarantor or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.08(a3.4(a) shall not prohibit:
(i1) any encumbrance or restriction pursuant to (i) any credit facility Credit Facility or (ii) any other agreement or instrument, in each case, in effect at or entered into on the Closing Issue Date;
(ii2) any encumbrance or restriction pursuant to this AgreementIndenture, the Collateral Documents and Notes, the Security Documents, the ABL Notes Intercreditor Agreement or the Note Guarantees;
(iii3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Parent Guarantor or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Parent Guarantor or was merged, consolidated or otherwise combined with or into the Borrower Parent Guarantor or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (iv)clause, if another Person is the Successor CompanyParent Guarantor, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Parent Guarantor or any Restricted Subsidiary when such Person becomes the Successor CompanyParent Guarantor;
(v5) any encumbrance or restriction:
: (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
; (Bii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents Indenture or securing Indebtedness of the Borrower Parent Guarantor or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) ; contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower Parent Guarantor or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower Parent Guarantor or such Restricted Subsidiary that are the subject to of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower Parent Guarantor or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
or (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower Parent Guarantor or any Restricted Subsidiary;
(vi6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral DocumentsIndenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower Parent Guarantor or any Restricted Subsidiary (or the property or assets that are subject to such restriction) not prohibited by the Indenture pending the closing of such sale or disposition;
(viii) 8) customary provisions in leases, licenses, equityholder shareholder agreements, joint venture agreements and other similar agreements, organizational documents and other similar agreements and instruments;
(ix9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi11) any encumbrance or restriction pursuant to Hedging Obligations;
(xii12) other Indebtedness Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the BorrowerParent Guarantor, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv14) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Issue Date pursuant to the provisions of Section 7.03 hereof) 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders Holders than (ai) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents ABL Credit Agreement (as in effect on the Closing Issue Date), together with the security documents associated therewith as in effect on the Issue Date or (bii) in comparable financings (as determined in good faith by the BorrowerParent Guarantor) and where, in the case of clause (bclause(ii), either (aA) the Borrower Parent Guarantor determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the BorrowerIssuer’s ability to make principal or interest payments on the Secured Obligations Notes or (bB) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv15) any encumbrance or restriction existing by reason of any Lien lien permitted under Section 7.01 hereof3.6; or
(xvi16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i1) to (xv15) of this Section 7.08(b3.4(b) or this clause (xvi16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerParent Guarantor). Notwithstanding any other provision to the contrary, the consummation of the Transactions shall not be prohibited by Article VII.
Appears in 1 contract
Samples: Indenture (BMC Stock Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary;
(ii) make any loans or advances to the Borrower Company or any Restricted Subsidiary; or
(iii) sell, lease or transfer any of its property or assets to the Borrower Company or any Restricted Subsidiary; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) Section 7.08(aClause (a) shall above will not prohibit:
(i) any encumbrance or restriction pursuant to (A) any credit facility Credit Facility (including the Credit Documents) or (B) any other agreement or instrument, in each case, in effect at or entered into on the Closing Signing Date;
(ii) any encumbrance or restriction pursuant to this Agreement, the Collateral Documents and the Guarantees;
(iii) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(iv) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower Company or was merged, consolidated or otherwise combined with or into the Borrower Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause subclause (ivii), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(v) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Collateral Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(C) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(vi) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vii) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(viii) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(ix) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(x) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(xi) any encumbrance or restriction pursuant to Hedging Obligations;
(xii) other Indebtedness of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 7.03 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(xiii) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(xiv) any encumbrance or restriction arising pursuant to an agreement or instrument (relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to the provisions of Section 7.03 hereof) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (a) the encumbrances and restrictions contained in the Loan Documents or the First-Priority Senior Secured Note Documents as in effect on the Closing Date or (b) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (b), either (a) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Secured Obligations or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(xv) any encumbrance or restriction existing by reason of any Lien permitted under Section 7.01 hereof; or
(xviiii) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses sub-clause (i) to or (xvii) of this Section 7.08(b) above or this sub-clause (xviiii) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses sub-clause (i) to or (xvii) of this Section 7.08(b) above or this sub-clause (xviiii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the BorrowerCompany). Notwithstanding ;
(iv) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other provision contract;
(B) contained in mortgages, pledges or other security agreements permitted under this Agreement or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Agreement to the contraryextent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(v) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(vi) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(vii) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;
(viii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(ix) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(x) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;
(xi) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Signing Date pursuant to Section 10.1 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (A) the encumbrances and restrictions contained in this Agreement, together with the Security Documents associated therewith as in effect on the Signing Date or (B) in comparable financings (as determined in good faith by the Company) and where, in the case of paragraph (B), the consummation Company determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Transactions shall not be prohibited Borrowers’ ability to make principal or interest payments on the Loans or Unpaid Drawings;
(xii) [Reserved]; or
(xiii) any encumbrance or restriction existing by Article VIIreason of any Lien permitted under Section 10.3.
Appears in 1 contract
Samples: Secured Term Credit Agreement (NXP Semiconductors N.V.)
