Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction: (1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes; (2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company; (3) 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 amendment, supplement or 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations; (5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; (6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or (7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Indenture (New Sally Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to to:
(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 Company, Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary;
(provided that dividend or liquidation priority between classes b) The provisions of Capital Stock, or subordination of any obligation (including the application of any remedy bars theretoSection 3.4(a) to any other obligation, will shall not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restrictionprohibit:
(1) any encumbrance or restriction pursuant to an any Credit Facility or any other agreement or instrument instrument, in each case, in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2) any encumbrance or restriction pursuant to the Note Documents;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person, Person or relating to Indebtedness or any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person is was acquired by or merged merged, consolidated or consolidated otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, (other than Capital Stock or Indebtedness incurred as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to financeconsideration 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 Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with, with such acquisition, merger or consolidation)transaction) and outstanding on such date; provided that that, for the purposes of this clause (2)clause, if a another Person other than the Company is the Successor Company with respect theretoCompany, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, assumed by the Company or a any Restricted Subsidiary, as the case may be, Subsidiary when such Person becomes such the Successor Company;
(35) pursuant to an agreement any encumbrance 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 amendment, supplement or 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);restriction:
(4) (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 contractcontract or agreement, or the assignment or transfer of any lease, license or other contractcontract or agreement;
(ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(Biii) by virtue of contained in any transfer oftrading, netting, operating, construction, service, supply, purchase, sale or other agreement to transfer, option which the Company or right any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with respect to, or Lien on, any past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or any such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges extend to any other asset or other security agreements securing Indebtedness property of a the Company or such Restricted Subsidiary to or the extent restricting the transfer assets or property of the property or assets subject thereto, another Restricted Subsidiary; or
(Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, ;
(E6) 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 or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(57) with respect to a Restricted Subsidiary (any encumbrance or any of its property or assets) restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(68) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; orauthority;
(710) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(11) any encumbrance or restriction pursuant to an agreement or instrument Hedging Obligations;
(A12) relating to any other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Issue Date pursuant to the provisions of Section 407 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(i13) restrictions created in connection with any Permitted Funding Indebtedness, Permitted Securitization Indebtedness or Credit Enhancement Agreements that, in the good faith determination of the Company, are necessary or advisable to effect such Permitted Funding Indebtedness or Permitted Securitization Indebtedness;
(14) 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 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 Holders of the Notes than (i) the encumbrances and restrictions contained in the Initial Agreements (Credit Facilities, together with the security documents associated therewith, or this Indenture as determined in good faith by effect on the Company), Issue Date or (ii) 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 Company) and where, in the case of clause (ii), either (xa) the Company determines in good faith at the time of entry into such agreement or instrument that such encumbrance encumbrances or restriction restrictions will not materially affect adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (yb) such encumbrance or restriction applies only if during the continuance of a default occurs in respect of a payment or financial covenant relating to such Indebtedness, agreement or instrument;
(B15) relating to any sale of receivables encumbrance or restriction existing by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor reason of any Special Purpose Entitylien permitted under Section
(16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses above or this clause (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses above or this clause; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are 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).
Appears in 1 contract
Samples: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging ObligationsObligations or (J) in connection with or relating to any Vehicle Rental Concession Right;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Indenture (Hertz Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits to the Company or a Restricted Subsidiary or pay any Indebtedness or other obligations obligation owed to the CompanyCompany or a Restricted Subsidiary, (ii) make any loans or advances to the Company or any other Restricted Subsidiary or (iii) transfer any of its property or assets to the Company or any other Restricted Subsidiary, except for such encumbrances or restrictions existing under or by reason of (provided a) the Credit Facility as in effect on December 17, 2001, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, however, that such amendments, restatements, renewals, replacements or refinancings are no more restrictive with respect to such dividend or liquidation priority between classes of Capital Stockand other payment restrictions than those contained in the Credit Facility (or, or subordination of any obligation (including the application of any remedy bars theretoif more restrictive, than those contained in this Indenture) immediately prior to any other obligationsuch amendment, will not be deemed to constitute such an encumbrance restatement, renewal, replacement or restriction)refinancing, except (b) applicable law, (c) any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to governing Indebtedness or Capital Stock of a Person, which an Acquired Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any of its Restricted Subsidiary in connection with an acquisition of assets from such Person, Subsidiaries as in effect at the time of such acquisition, merger or consolidation acquisition (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, with or in contemplation of such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that (1) such restriction is not applicable to any Person, or the encumbrances properties or assets of any Person, other than the Acquired Person, and (2) the consolidated net income of an Acquired Person for any period prior to such acquisition shall not be taken into account in determining whether such acquisition was permitted by the terms of this Indenture, (d) by reason of customary non-assignment provisions in leases or other agreements entered into the ordinary course of business and consistent with past practices, (e) Purchase Money Indebtedness for property acquired in the ordinary course of business that only impose restrictions contained in any such Refinancing Agreement on the property so acquired, (f) an agreement for the sale or Amendment taken as a whole are not materially less favorable to the Holders disposition of the Notes Capital Stock or assets of such Restricted Subsidiary; provided, however, that such restriction is only applicable to such Restricted Subsidiary or assets, as applicable, and such sale or disposition otherwise is permitted under Section 4.17 below; provided, further, however, that such restriction or encumbrance shall be effective only for a period from the execution and delivery of such agreement through a termination date not later than encumbrances 270 days after such execution and delivery, or (g) Refinancing Indebtedness permitted under this Indenture; provided, however, that the restrictions contained in the Initial Agreement or Initial Agreements to which agreements governing such Refinancing Agreement or Amendment relates (as determined Indebtedness are no more restrictive 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) aggregate than those contained in mortgagesthe agreements governing the Indebtedness being refinanced immediately prior to such refinancing. Notwithstanding the foregoing, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, neither (Da) pursuant to customary provisions restricting dispositions subletting or assignment of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements lease entered into in the ordinary course of business, consistent with past practice, nor (Gb) pursuant to customary provisions contained Liens permitted under this Indenture, shall in agreements and instruments entered into in of themselves be considered a restriction on 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 ability of the Company or any applicable Restricted Subsidiary in any manner material to the Company or transfer such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property agreements or assets) imposed pursuant to an agreement entered into for , as the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entitycase may be.
Appears in 1 contract
Samples: Indenture (Terex Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (ia) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (iib) make any loans or advances to the Company or (iiic) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1i) pursuant to an agreement or instrument in effect at or entered into on the Issue Closing Date, any Credit Facility, the Senior Subordinated Indenturethis Agreement, this Indentureany Incremental Equivalent Debt, any Additional Non-ABL Secured Debt Obligations, the Senior Subordinated Notes or the Notesindenture with respect thereto;
(2ii) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger merger, consolidation or consolidation transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger merger, consolidation or consolidationtransaction); provided that for purposes of this clause (2ii), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3iii) 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, an any agreement or instrument referred to in clause (1i) or (2ii) of this Section 410 6.03 or this clause (3iii) (an “Initial Agreement”) or that is, or is contained in 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 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 Company);
(4iv) pursuant to customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(A) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contractthereto, (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 (including IP Rights) not otherwise prohibited by this IndentureAgreement, (C) contained in mortgages, pledges or other security agreements securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases leases, licenses and sublicenses) or in joint venture and other similar agreements entered into or in the ordinary course shareholder, partnership, limited liability company and other similar agreements in respect of business)non-wholly owned Restricted Subsidiaries, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations, Bank Products Obligations or Open Account Obligations;
(5vi) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock Stock, property or assets of any Person, property or assets, imposing restrictions with respect to such Restricted Subsidiary (or the Person, Capital Stock, property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6vii) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(7viii) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Closing Date pursuant to the provisions of Section 407 6.01 (i1) 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 Lenders than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), ) or (ii2) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes Lenders than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes Loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose EntityReceivables Subsidiary.
Appears in 1 contract
Samples: First Lien Credit Agreement (Victoria's Secret & Co.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction)Company, except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated IndentureExisting Indentures, the Existing Notes, this Indenture, the Senior Subordinated Notes Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred Incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a another Person other than the Company is the Successor Company with respect theretoCompany, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such the Successor Company;
(3) 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 amendment, supplement or 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 taken as a whole than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, Subsidiary or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 407, (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of by any Special Purpose Receivables Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to to:
(i1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company, Company or any of its Restricted Subsidiaries;
(ii2) make any loans or advances to the Company or any of its Restricted Subsidiaries; or
(iii3) transfer any of its property properties or assets to the Company or any of its Restricted Subsidiaries.
(provided that dividend or liquidation priority between classes of Capital Stockb) However, or subordination of any obligation (including the application of any remedy bars theretoSection 4.13(a) to any other obligation, will not be deemed apply to constitute such an encumbrance encumbrances or restriction), except any encumbrance restrictions existing under or restrictionby reason of:
(1) pursuant to an agreement or instrument Existing Indebtedness as in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, date hereof;
(2) this Indenture, the Senior Subordinated Notes Indenture or the Notes;
(23) pursuant to applicable law, rules or regulations;
(4) any agreement or instrument of a Person, or relating to governing Indebtedness (including Acquired Debt) or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any of its Restricted Subsidiary in connection with an acquisition of assets from such Person, Subsidiaries as in effect at the time of such acquisition, merger or consolidation acquisition (except to the extent that such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or 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 contractPerson, or the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this IndenturePerson, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, PROVIDED that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(F5) on cash non-assignment provisions in leases, licenses or other deposits or net worth imposed by customers or suppliers under similar agreements entered into in the ordinary course of business, business and consistent with past practices;
(G6) pursuant to customary provisions contained in agreements and instruments entered into purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in Section 4.13(a)(3);
(including but not limited 7) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(8) Liens securing Indebtedness that limit the right of the debtor to leases and dispose of the assets subject to such Lien;
(9) 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), ;
(H10) that arises restrictions on cash or is agreed to other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business and does business;
(11) the Senior Credit Agreement as in effect on the date of this Indenture;
(12) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;
(13) encumbrances or restrictions existing under or arising pursuant to Credit Facilities entered into in accordance with this Indenture; PROVIDED that the encumbrances or restrictions in such Credit Facilities are not detract from materially more restrictive to the value borrower than those applicable to the borrower under the Senior Credit Agreement as in effect on the date of property this Indenture (other than encumbrances or assets restrictions in Credit Facilities entered into by a Restricted Subsidiary of the Company to finance some or any all of the purchase price of a Restricted Subsidiary in any manner material and which only apply to the Company or Restricted Subsidiary so acquired and such Restricted Subsidiary, or (I) pursuant to Hedging Obligations's assets);
(514) any Purchase Money Note or other Indebtedness or other contractual requirements of a Receivables Subsidiary in connection with respect a Qualified Receivables Transaction; PROVIDED that such restrictions apply only to a such Receivables Subsidiary;
(15) encumbrances or restrictions under Indebtedness incurred by the Restricted Subsidiary (Subsidiaries owning the assets that comprise the Kildare Hotel and Country Club, which encumbrance or restriction is not applicable to any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (other Persons or the property or assets of any other Person; PROVIDED that are subject such Indebtedness was permitted by the terms of this Indenture; and
(16) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in Sections 4.13(b)(1) through (15); PROVIDED that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Board of Directors of the Company, not materially more restrictive with respect to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 Holders of the Notes than the encumbrances and restrictions those contained in the Initial Agreements (as determined in good faith by the Company), dividends or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a other payment or financial covenant relating restrictions prior to such Indebtednessamendment, (B) relating to any sale of receivables by a Foreign Subsidiary modification, restatement, renewal, increase, supplement, refunding, replacement or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entityrefinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will shall not be deemed to constitute such an encumbrance or restriction), in each case except any encumbrance or restriction:
(1a) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated 2025 Unsecured Notes Indenture, the 2026 Secured Notes Indenture, the Notes, the 2025 Unsecured Notes, the 2026 Secured Notes, any Subsidiary Guarantee, any Guarantee of the 2025 Unsecured Notes or any Guarantee of the 2026 Secured Notes;
(2b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such PersonPerson (but not created in contemplation thereof), as in effect at the time of such acquisition, merger merger, consolidation or consolidation transaction (except to the extent that such Indebtedness was incurred Incurred to finance, or otherwise in connection with, such acquisition, merger merger, consolidation or consolidationtransaction); provided that for purposes of this clause (2Section 4.05(b), if a Person other than the Company or a Restricted Subsidiary is the Successor Company successor company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companysuccessor company;
(3c) 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 modifies or replaces, an any agreement or instrument referred to in clause (1Section 4.05(a) or (2Section 4.05(b) of or this Section 410 or this clause (34.05(c) (an “Initial Agreement”) or that is, or is contained in 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);
(4d) (A) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contractthereto, (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 or other security agreements securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) in joint venture and other similar agreements entered into or in the ordinary course shareholder, partnership, limited liability company and other similar agreements in respect of business)non-wholly owned Restricted Subsidiaries, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations or Bank Products Obligations, (J) customary net worth provisions contained in real property leases entered into by the Company or any Restricted Subsidiary, so long as the Company has determined in good faith that such net worth provisions could not reasonably be expected to impair the ability of the Company and its Restricted Subsidiaries to meet their ongoing obligations and (K) pursuant to any agreement providing for the subordination of Subordinated Obligations pursuant to the definition thereof;
(5e) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock Stock, property or assets of any Person, imposing restrictions with respect to such Restricted Subsidiary (or the Person, Capital Stock, property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6f) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(7g) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 4.03 (ix) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), ) or (iiy) 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 Company) and either (x1) the Company determines in good faith that such encumbrance or restriction will shall not materially affect the Company’s ability to make principal or interest payments on the Notes or (y2) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock Equity Interests or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital StockEquity Interests, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an any agreement or instrument in effect at or entered into on the Issue Date, any Credit Facilityincluding, the Senior Subordinated Indenturewithout limitation, this Indenture, the Notes, the Senior Subordinated Notes Note Indenture, the Senior Subordinated Notes, the Fixed Rate Senior Note Indenture, the Fixed Rate Senior Notes, the Senior Credit Facility or the Notesany other Credit Facility;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock Equity Interests of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases leases, sale and leaseback agreements, asset sale agreements and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock Equity Interests or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, Indebtedness or (B) relating to any sale of receivables by a Foreign Subsidiary of, or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Indenture (Adesa California, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction)Company, except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred Incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a another Person other than the Company is the Successor Company with respect theretoCompany, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such the Successor Company;
(3) 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 amendment, supplement or 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 taken as a whole than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, Subsidiary or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of by any Special Purpose Receivables Entity.
Appears in 1 contract
Samples: Indenture (VWR International, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to to:
(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 Company, Company or any Restricted Subsidiary;
(iiB) make any loans or advances to the Company or any Restricted Subsidiary; or
(iiiC) sell, lease or transfer any of its property or assets to the Company (or any Restricted Subsidiary; provided that dividend (x) the priority of any Preferred Stock in receiving dividends or liquidation priority between classes of Capital Stock, liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of any obligation (including the application of any remedy bars theretostandstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other obligation, will Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction.
(b) The provisions of Section 4.08(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to an (a) the New Revolving Credit Facility, (b) the Notes, any Additional Notes and the Note Guarantees, (c) the Intercreditor Agreement and any Additional Intercreditor Agreement, (d) the Security Documents or (e) any other agreement or instrument instrument, in each case, in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2) any encumbrance or restriction pursuant to any an agreement or instrument of a Person, Person or relating to Indebtedness or any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person is was acquired by or merged merged, consolidated or consolidated otherwise combined with or into the Company or any Restricted Subsidiary, or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, (other than Capital Stock or Indebtedness Incurred as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to financeconsideration 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 Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary entered into or in connection with, with such acquisition, merger or consolidation)transaction) and outstanding on such date; provided that that, for the purposes of this clause (2Section 4.08(b)(2), if a another Person other than the Company is the Successor Company with respect theretoCompany, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, assumed by the Company or a any Restricted Subsidiary, as the case may be, Subsidiary when such Person becomes such the Successor Company;
(3) any encumbrance or restriction 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 replacesrefinances, an agreement or instrument referred to in clause (1Section 4.08(b)(1) or (2Section 4.08(b)(2) of or this Section 410 or this clause (34.08(b)(3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”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 such Restricted Subsidiary contained in any such Refinancing Agreement agreement or Amendment instrument are no less favorable in any material respect to the Holders taken as a whole are not materially less favorable to than the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement refinancing or Amendment amendment, supplement or other modification relates (as determined in good faith by the Company);
(4) any encumbrance or restriction:
(Aa) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, ;
(B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (Cb) contained in mortgages, pledges pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent restricting such encumbrances or restrictions restrict the transfer of the property or assets subject theretoto such mortgages, pledges, charges or other security agreements; or
(Dc) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, ;
(E5) 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 assets so acquired, (F) on cash any encumbrance or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) restriction pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and a joint venture and other similar agreements entered into in agreement that imposes restrictions on the ordinary course transfer of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligationsjoint venture;
(56) 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;
(67) 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 law, rule, regulation or order, the terms of any license, authorization, concession or permit or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; orauthority;
(79) 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 (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 of the Notes than (i) the encumbrances and restrictions contained in the Initial Agreements (New Revolving Credit Facility, together with the security documents associated therewith as determined in good faith by effect on the Company), Issue Date or (ii) 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 Company) and either where, in the case of this clause (x) ii), the Company determines in good faith at the time such Indebtedness is Incurred that such encumbrance encumbrances or restriction restrictions will not materially affect adversely affect, in any material respect, the CompanyIssuer’s ability to make principal or interest payments on the Notes Notes;
(12) restrictions relating to Permitted Purchase Obligations SPVs effected in connection with the incurrence of Permitted Purchase Obligations that, in the good faith determination of the Board of Directors of the Company, are necessary or advisable;
(y13) such any encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables existing by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor reason of any Special Purpose Entitylien permitted under Section 4.12;
(14) any encumbrance or restriction on assets held in trust for a third party, including pursuant to the relevant trust agreement; or
(15) any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions in Section 4.08(b); provided that the terms and conditions of any such encumbrances or restrictions are, in the good faith judgment of the Board of Directors of the Company, no more restrictive in any material respect than those under or pursuant to the agreement so extended, renewed, refinanced or replaced.
Appears in 1 contract
Samples: Indenture (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, Date or pursuant to any Credit Debt Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger merger, consolidation or consolidation transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger merger, consolidation or consolidationtransaction); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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, an any agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in in, any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) pursuant to customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(5) (A) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contractthereto, (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 or other security agreements securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements entered into or in the ordinary course shareholder, partnership, limited liability company and other similar agreements in respect of business)non-wholly owned Restricted Subsidiaries, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations or Bank Products Obligations;
(56) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock Stock, property or assets of any Person, property or assets, imposing restrictions with respect to such Restricted Subsidiary (or the Person, Capital Stock, property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(67) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) 8) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), ) or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose EntityReceivables Subsidiary.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to to:
(i1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company, Company or any Restricted Subsidiary (iiit being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make any loans or advances to the Company or any Restricted Subsidiary (iiiit being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (provided it being understood that dividend such transfers shall not include any type of transfer described in clause (1) or liquidation priority between classes of Capital Stock, (2) above).
(b) Section 4.08(a) shall not prohibit encumbrances or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance restrictions existing under or restriction), except any encumbrance or restrictionby reason of:
(1) pursuant to an the Senior Credit Facilities, the Master Lease, the Relative Rights Agreement, the ETMC JV Agreement or any other agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2) pursuant to this Indenture, the Notes and the Note Guarantees;
(3) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any of its Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary Subsidiaries in connection with an acquisition of assets from such Person, as in effect existence at the time of such acquisition, merger or consolidation (except but not created in contemplation thereof), which encumbrance or restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise the property or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired (including after-acquired property and assets);
(4) any amendment, restatement, modification, renewal, supplement, extension, refunding, replacement or refinancing of an agreement referred to in connection withclauses (1), such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 this clause (1) or (24) of this Section 410 or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”4.08(b); provided, however, that the encumbrances or restrictions contained in such amendment, restatement, modification, renewal, supplement, extension, refunding, replacement or refinancing is, in the good faith judgment of the Company, not materially more restrictive, when taken as a whole, than 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 agreements or instruments referred to in clauses (1), (2) or (3) of this Section 4.08(b) on the Initial Agreement Issue Date or Initial Agreements to which the date such Refinancing Agreement Restricted Subsidiary became a Restricted Subsidiary or Amendment relates (as determined in good faith by was merged or consolidated with or into the Company)Company or a Restricted Subsidiary, whichever is applicable;
(45) in the case of clause (A3) of Section 4.08(a), Permitted Liens or Liens otherwise permitted to be Incurred under Section 4.12 that restricts in a customary manner limit the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness debtor to dispose of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject theretoto such Liens;
(6) purchase money obligations, (D) pursuant to customary provisions restricting dispositions of real property interests set forth mortgage financings, Capitalized Lease Obligations and similar obligations or agreements permitted under this Indenture, in any reciprocal easement agreements of the Company or any Restricted Subsidiaryeach case, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on of the nature described in clause (3) of Section 4.08(a) with respect to the property or assets so acquired, financed, designed, leased, constructed, repaired, maintained, installed or improved in connection therewith or thereby (Fincluding any proceeds thereof, accessions thereto and any upgrades or improvements thereto);
(7) agreements for the sale, transfer or other disposition of property or assets, including without limitation customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale, transfer or other disposition of all or a portion of the Capital Stock, property or assets of such Subsidiary;
(8) restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers customers, suppliers or suppliers landlords under contracts entered into in the ordinary course of business or as required by insurance surety or bonding companies;
(9) any provisions in joint venture agreements, partnership agreements, limited liability company agreements and other similar agreements, which (x) are customary or (y) as determined in good faith by an Officer of the Company (as evidenced by an Officer’s Certificate) do not adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due;
(10) any provisions in leases, subleases, licenses, asset sale agreements, sale/leaseback agreements or stock sale agreements and other agreements entered into by the Company or any Restricted Subsidiary that (x) are customary and entered into in the ordinary course of business or (y) do not adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due, as determined in good faith by an officer of the Company (as evidenced by an Officer’s Certificate);
(11) applicable law or any applicable rule, regulation or order, or any license, permit or other authorization issued by any governmental or regulatory authority;
(12) non-assignment provisions of any contract or any lease of the Company or any Restricted Subsidiary entered into in the ordinary course of business, ;
(G13) 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 Credit Facilities or 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 debt arrangements Incurred by the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Preferred Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) issued by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Subsidiary, in accordance with Section 407 (i) if the encumbrances and restrictions contained in any such agreement or instrument 4.09, that are not materially more restrictive, when taken as a whole are not materially less favorable to whole, than those applicable in this Indenture, the Holders of Term Loan Facility or the Notes than ABL Credit Agreement on the encumbrances and restrictions contained in the Initial Agreements (Issue Date, which, as determined in good faith by the Company), or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders an Officer of the Notes than is customary in comparable financings Company (as determined in good faith evidenced by the Companyan Officer’s Certificate) and either (x) the Company determines in good faith that such encumbrance or restriction will do not materially adversely affect the Company’s ability to make payments of principal or interest payments on the Notes when due; and
(14) any encumbrance or (y) restriction required by the terms of any agreement relating to a Qualified Receivables Transaction; provided, however, that such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose EntityQualified Receivables Transaction.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction)Company, except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue DateDate (including, any Credit Facilitywithout limitation, the Senior Subordinated IndentureCredit Facility), this Indenture, the Senior Subordinated Notes Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement agree ment or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); , provided that for purposes of this clause (2), if a another Person other than the Company is the Successor Company with respect theretoCompany, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such the Successor Company;
(3) 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 410 409 or this clause (3) (an “"Initial Agreement”") or contained in any amendment, supplement or other modification to an Initial Agreement (an “"Amendment”"); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes taken as a whole than encumbrances and restrictions re strictions 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited pro hibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), ) or (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) required by reason of any applicable law, rule, regulation or order, order or required by any regulatory regu latory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 406 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect cause the Company’s ability Company not to make have the funds necessary to pay the principal of or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such IndebtednessNotes, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of by any Special Purpose Receivables Entity.
Appears in 1 contract
Samples: Indenture (Us Office Products Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyCompany or its Restricted Subsidiaries, (ii) make any loans or advances to the Company or its Restricted Subsidiaries or (iii) transfer any of its property or assets to the Company or its Restricted Subsidiaries (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1a) pursuant to an the Loan Documents, the ABL Loan Documents and the 2025 Senior Unsecured Notes Indenture or any other agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the NotesClosing Date and set forth on Schedule 6.03;
(2b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2b), if a Person other than the Company is the Successor Company surviving entity with respect theretoto such merger or consolidation, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companysurviving entity;
(3c) 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 (1a) or (2b) of this Section 410 6.03 or this clause (3c) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes 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 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this IndentureAgreement, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or 122 any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging ObligationsAgreements;
(5e) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6f) by reason of any applicable lawLaw, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or;
(7g) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Closing Date pursuant to the provisions of Section 407 6.01 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes Lenders than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes Lenders than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes Loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity; or
(h) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (a) through (g) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Borrowers, no more restrictive in any material respect with respect to such encumbrance and other restrictions, taken as a whole, than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will Issuer shall not, and will shall not permit any Restricted Subsidiary (other than the 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 to (iother than the Guarantors) to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, Issuer or any Restricted Subsidiary that is a Guarantor;
(ii2) make any loans or advances to the Company Issuer or any Restricted Subsidiary that is a Guarantor; or
(iii3) sell, lease or transfer any of its property or assets to the Company (Issuer or any Restricted Subsidiary that is a Guarantor; provided that dividend (x) the priority of any Preferred Stock in receiving dividends or liquidation priority between classes of Capital Stock, liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of any obligation (including the application of any remedy bars theretostandstill requirements to) loans or advances made to the Issuer or any Restricted Subsidiary to other obligation, will Indebtedness Incurred by the Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction.
(b) Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to an (i) any Credit Facility, or (ii) any other agreement or instrument instrument, in each case, in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2) this Indenture, the Notes, and the Note Guarantees;
(3) any encumbrance or restriction pursuant to any an agreement or instrument of a Person, Person or relating to Indebtedness or any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person is was acquired by or merged merged, consolidated or consolidated otherwise combined with or into the Company Issuer or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company Issuer or any Restricted Subsidiary in connection with an acquisition of assets from such Person, (other than Capital Stock or Indebtedness Incurred as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to financeconsideration 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 Issuer or was merged, consolidated or otherwise combined with or into the Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with, with such acquisition, merger or consolidation)transaction) and outstanding on such date; provided that that, for the purposes of this clause (23), if a another Person other than the Company is the Successor Company with respect theretoIssuer, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, assumed by the Company Issuer or a any Restricted Subsidiary, as the case may be, Subsidiary when such Person becomes such the Successor Company;
(3) 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 amendment, supplement or 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)Issuer;
(4) 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 contractcontract or agreement, or the assignment or transfer of any lease, license or other contract, contract or agreement;
(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, (Cii) contained in mortgages, pledges pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Issuer or a Restricted Subsidiary permitted under this Indenture to the extent restricting such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject theretoto such mortgages, pledges, charges or other security agreements; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Issuer or any Restricted Subsidiary, ;
(E5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(56) with respect to a Restricted Subsidiary (any encumbrance or any of its property or assets) restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such the Issuer or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(67) customary provisions in leases, sub-leases, licenses, sublicenses, shareholder agreements, joint venture agreements and other similar agreements and instruments;
(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 having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; orauthority;
(79) 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;
(10) any encumbrance or restriction pursuant to an agreement Hedging Obligations;
(11) other Indebtedness, Disqualified Stock or instrument (A) relating to any Indebtedness Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant to the provisions of Section 407 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(i12) restrictions created in connection with any Qualified Securitization Financing that, in the good faith determination of the Issuer, are necessary or advisable to effect such Securitization Facility;
(13) any encumbrance or restriction arising pursuant to an agreement or instrument (which, if it relates to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.2) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole (i) are not not, in the Issuer’s good faith judgment, materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in the Initial Agreements (Credit Agreement, together with the security documents associated therewith as determined in good faith by effect on the Company), Issue Date or (ii) 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 Company) and either (xA) the Company Issuer determines in good faith at the time of entry into such agreement or instrument that such encumbrance encumbrances or restriction restrictions will not materially affect adversely affect, in any material respect, the CompanyIssuer’s ability to make principal or interest payments on the Notes or (yB) such encumbrance or restriction applies only if during the continuance of a default occurs in respect of a payment or financial covenant relating to such Indebtedness, agreement or instrument;
(B14) relating to any sale of receivables encumbrance or restriction existing by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor reason of any Special Purpose EntityLien permitted under Section 3.6 or
(15) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (14) of this Section 3.4(b) or this clause (15) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (14) of this Section 3.4(b) or this clause (15); 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 Issuer).
Appears in 1 contract
Samples: Indenture (Korn Ferry)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to to:
(i1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or 61 participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company, Company or any of its Restricted Subsidiaries;
(ii2) make any loans or advances to the Company or any of its Restricted Subsidiaries; or
(iii3) transfer any of its property properties or assets to the Company or any of its Restricted Subsidiaries.
(provided that dividend or liquidation priority between classes of Capital Stockb) However, or subordination of any obligation (including the application of any remedy bars theretoSection 4.13(a) to any other obligation, will not be deemed apply to constitute such an encumbrance encumbrances or restriction), except any encumbrance restrictions existing under or restrictionby reason of:
(1) pursuant to an agreement or instrument Existing Indebtedness as in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, date hereof;
(2) this Indenture, the Senior Subordinated Notes Indenture or the Notes;
(23) pursuant to applicable law, rules or regulations;
(4) any agreement or instrument of a Person, or relating to governing Indebtedness (including Acquired Debt) or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any of its Restricted Subsidiary in connection with an acquisition of assets from such Person, Subsidiaries as in effect at the time of such acquisition, merger or consolidation acquisition (except to the extent that such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or 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 contractPerson, or the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this IndenturePerson, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, PROVIDED that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(F5) on cash non-assignment provisions in leases, licenses or other deposits or net worth imposed by customers or suppliers under similar agreements entered into in the ordinary course of business, business and consistent with past practices;
(G6) pursuant to customary provisions contained in agreements and instruments entered into purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in Section 4.13(a)(3);
(including but not limited 7) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(8) Liens securing Indebtedness that limit the right of the debtor to leases and dispose of the assets subject to such Lien;
(9) 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), ;
(H10) that arises restrictions on cash or is agreed to other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business and does business;
(11) the Senior Credit Agreement as in effect on the date of this Indenture;
(12) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;
(13) encumbrances or restrictions existing under or arising pursuant to Credit Facilities entered into in accordance with this Indenture; PROVIDED that the encumbrances or restrictions in such Credit Facilities are not detract from materially more restrictive to the value borrower than those applicable to the borrower under the Senior Credit Agreement as in effect on the date of property this Indenture (other than encumbrances or assets restrictions in Credit Facilities entered into by a Restricted Subsidiary of the Company to finance some or any all of the purchase price of a Restricted Subsidiary in any manner material and which only apply to the Company or Restricted Subsidiary so acquired and such Restricted Subsidiary, or (I) pursuant to Hedging Obligations's assets);
(514) any Purchase Money Note or other Indebtedness or other contractual requirements of a Receivables Subsidiary in connection with respect a Qualified Receivables Transaction; PROVIDED that such restrictions apply only to a such Receivables Subsidiary;
(15) encumbrances or restrictions under Indebtedness incurred by the Restricted Subsidiary (Subsidiaries owning the assets that comprise the Kildare Hotel and Country Club, which encumbrance or restriction is not applicable to any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (other Persons or the property or assets of any other Person; PROVIDED that are subject such Indebtedness was permitted by the terms of this Indenture; and
(16) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in Sections 4.13(b)(1) through (15); PROVIDED that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Board of Directors of the Company, not materially more restrictive with respect to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 Holders of the Notes than the encumbrances and restrictions those contained in the Initial Agreements (as determined in good faith by the Company), dividends or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a other payment or financial covenant relating restrictions prior to such Indebtednessamendment, (B) relating to any sale of receivables by a Foreign Subsidiary modification, restatement, renewal, increase, supplement, refunding, replacement or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entityrefinancing.
Appears in 1 contract
Samples: Euro Indenture (MDCP Acquisitions I)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company and any Permitted Affiliate Parent will not, and 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 to (iother than the Loan Parties) to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, any Permitted Affiliate Parent or any Restricted Subsidiary;
(ii2) make any loans or advances to the Company Company, any Permitted Affiliate Parent or any Restricted Subsidiary; or
(iii3) transfer any of its property or assets to the Company (Company, any Permitted Affiliate Parent or any Restricted Subsidiary; provided that dividend (x) the priority of any Preferred Stock in receiving dividends or liquidation priority between classes of Capital Stock, liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock and (y) the subordination of any obligation (including but 216 95007600_2 not limited to, the application of any remedy bars theretostandstill requirements to) loans or advances made to the Company, any Permitted Affiliate Parent or any Restricted Subsidiary to other obligationIndebtedness Incurred by the Company, will any Permitted Affiliate Parent or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction.
(b) Section 4.08(a) will not prohibit:
(1) any encumbrance or restriction pursuant to an agreement in effect, entered into or substantially agreed on the 2021 Amendment Effective Date, including, without limitation, this Agreement, the other Loan Documents, the Covenant Agreement, the Proceeds Loan Agreement, the Proceeds Loan Collateral Documents and any related documentation (including the security documents securing the Indebtedness thereunder and the guarantees thereof), in each case, as in effect, or substantially agreed, on the 2021 Amendment Effective Date;
(2) any encumbrance or restriction pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2) pursuant of a Person relating to any agreement Capital Stock or instrument Indebtedness of a Person, Incurred on or relating to Indebtedness or Capital Stock of a Person, before the date on which such Person is was acquired by or merged or consolidated with or into the Company Company, a Permitted Affiliate Parent or any Restricted SubsidiarySubsidiary or designated a Permitted Affiliate Parent, an Affiliate Subsidiary or a Restricted Subsidiary (or became a Restricted Subsidiary as a result thereof), or which such agreement or instrument is assumed by the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary in connection with an acquisition of assets from (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 PersonPerson became a Restricted Subsidiary or was acquired by the Company, as a Permitted Affiliate Parent or a Restricted Subsidiary or was merged or consolidated with or into the Company, a Permitted Affiliate Parent or any Restricted Subsidiary or in effect at the time contemplation of such acquisition, merger or consolidation (except to the extent that transaction) and outstanding on such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation)date; provided that 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 (2Section 4.08(b)(2), if a another Person other than the Company is the Successor Company with respect theretoCompany, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, assumed by the Company Company, a Permitted Affiliate Parent or a any Restricted Subsidiary, as the case may be, Subsidiary when such Person becomes such the Successor Company;
(3) any encumbrance or restriction pursuant to an agreement or instrument (a “Refinancing Agreement”) 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 clause (1Section 4.08(b)(1) or (2Section 4.08(b)(2) of or this Section 410 or this clause (3) (an “Initial Agreement”4.08(b)(3) or contained in any amendment, supplement supplement, restatement or other modification to an Initial Agreement (an “Amendment”agreement referred to in Section 4.08(b)(1) or Section 4.08(b)(2) or this Section 4.08(b)(3); providedprovided that the encumbrances and restrictions, howevertaken as a whole, that 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 any such Refinancing Agreement agreements referred to in Section 4.08(b)(1) 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 Section 4.08(b)(2) (as determined conclusively in good faith by the CompanyBoard 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 the assignment or transfer of any such lease, license or other contract, ;
(B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets contained in Liens permitted under this Agreement securing Indebtedness of the Company Company, a Permitted Affiliate Parent or any a Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, agreements; 217 95007600_2
(DC) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary, ; or
(ED) 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;
(5) any encumbrance or restriction pursuant to (A) Purchase Money Obligations that impose encumbrances or restrictions on the for property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into acquired in the ordinary course of businessbusiness or (B) Capitalized Lease Obligations permitted under this Agreement, in each case, that either (Gi) pursuant to impose encumbrances or restrictions of the nature described in Section 4.08(a)(3) on the property so acquired or (ii) are customary provisions contained in agreements connection with Purchase Money Obligations, Capitalized Lease Obligations and instruments entered into mortgage financings for property acquired in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into as determined conclusively in good faith by the ordinary course Board of business), (H) that arises Directors or is agreed to in the ordinary course of business and does not detract from the value of property or assets senior management of the Company or a Permitted Affiliate Parent);
(6) any Restricted Subsidiary encumbrance or restriction arising in connection with, or any manner material 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 Restricted Subsidiary, or (I) pursuant to Hedging ObligationsQualified Receivables Transaction;
(57) any encumbrance or restriction (A) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement (or option to enter into such agreement) entered into for the direct or indirect sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or dispositiondisposition or (B) arising by reason of contracts for the sale of assets, including customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale and disposition of all or substantially all assets of such Subsidiary or conditions imposed by governmental authorities or otherwise resulting from dispositions required by governmental authorities;
(68) (A) customary provisions in leases, asset sale agreements, joint venture agreements 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 or any related shareholders, joint venture or other agreements (including restrictions on the payment of dividends or other distributions);
(9) encumbrances or restrictions arising or existing by reason of applicable Law or any applicable law, rule, regulation or regulation, governmental license, order, concession, franchise, or permit or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; orauthority;
(710) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction pursuant to Currency Agreements, Commodity Agreements or Interest Rate Agreements;
(12) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue 2021 Amendment Effective Date pursuant to the provisions of Section 407 4.09 if (iA) 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 Finance Parties than the encumbrances and restrictions contained in this Agreement, the Initial Agreements other Loan Documents, and any related documentation, in each case, as in effect on the 2021 Amendment Effective Date (as determined conclusively in good faith by the Company), Board of Directors or senior management of the Company or a Permitted Affiliate Parent) or (iiB) if such encumbrance or restriction is encumbrances and restrictions taken as a whole are not materially more disadvantageous to the Holders of the Notes Finance Parties than is customary in comparable financings (as determined conclusively in good faith by the CompanyBoard of 218 95007600_2 Directors or senior management of the Company or a Permitted Affiliate Parent) and and, in each case, either (xi) the Company determines in good faith or a Permitted Affiliate Parent reasonably believes that such encumbrance or restriction encumbrances and restrictions will not materially affect the Company’s Borrowers’ ability to make principal or interest payments on the Notes Loans as and when they come due or (yii) such encumbrance or restriction applies encumbrances and restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, ;
(B13) relating any encumbrance or restriction arising by reason of customary non-assignment provisions in agreements; and
(14) any encumbrance or restriction pursuant to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose EntityIntercreditor Agreement.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction)Company, except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred Incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a another Person other than the Company is the Successor Company with respect theretoCompany, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such the Successor Company;
(3) 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 amendment, supplement or 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 taken as a whole than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, Subsidiary or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of by any Special Purpose Receivables Entity.
Appears in 1 contract
Samples: Indenture (VWR International, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will shall not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1a) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes Indenture or the Notesany Subsidiary Guarantee;
(2b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such PersonPerson (but not created in contemplation thereof), as in effect at the time of such acquisition, merger merger, consolidation or consolidation transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger merger, consolidation or consolidationtransaction); provided that for purposes of this clause (2Section 4.05(b), if a Person other than the Company or a Restricted Subsidiary is the Successor Company successor company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companysuccessor company;
(3c) 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 modifies or replaces, an any agreement or instrument referred to in clause (1Section 4.05(a) or (2Section 4.05(b) of or this Section 410 or this clause (34.05(c) (an “Initial Agreement”) or that is, or is contained in in, any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an a “Refinancing Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment Refinancing Amendment, taken as a whole 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 Refinancing Amendment relates (as determined in good faith by the Company);
(4d) (A) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contractthereto, (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 or other security agreements securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) in joint venture and other similar agreements entered into or in the ordinary course shareholder, partnership, limited liability company and other similar agreements in respect of business)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, Subsidiary or (I) pursuant to Hedging Obligations or Bank Products Obligations;
(5e) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock Stock, property or assets of any Person, imposing restrictions with respect to such Restricted Subsidiary (or the Person, Capital Stock, property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6f) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(7g) pursuant to an agreement or instrument (Ai) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 4.03 (iA) if the encumbrances and restrictions contained in any such agreement or instrument instrument, taken as a whole whole, are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), ) or (iiB) 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 Company) and either (x1) the Company determines in good faith that such encumbrance or restriction will shall not materially affect the Company’s ability to make principal or interest payments on the Notes Securities or (y2) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (Bii) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (Ciii) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Indenture (Greif Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyCompany or, in the case of a Restricted Subsidiary that is not a Subsidiary Guarantor, to a Subsidiary Guarantor, (ii) make any loans or advances to the Company or, in the case of a Restricted Subsidiary that is not a Subsidiary Guarantor, to a Subsidiary Guarantor or (iii) transfer any of its property or assets to the Company or, in the case of a Restricted Subsidiary that is not a Subsidiary Guarantor, to a Subsidiary Guarantor (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Note Security Documents, the Intercreditor Agreements, the Notes, the Senior First Priority Note Documents, the Senior First Priority Notes, the Senior Unsecured Indenture, the Senior Unsecured Notes, the Senior Subordinated Notes Indenture or the Senior Subordinated Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements entered into in the ordinary course of business)agreements, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations entered into for bona fide hedging purposes or (J) pursuant to Bank Products Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) ), imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Indenture (Hd Supply, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Indenture, the Notes or the Senior Subordinated Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements entered into in the ordinary course of businessagreements), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Indenture (Great North Imports, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Permanent Notes Indenture, the Notes or the Permanent Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, (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 or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements entered into in the ordinary course of business)agreements, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary or Home Warranty Subsidiary; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Indenture (Servicemaster Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will shall not be deemed to constitute such an encumbrance or restriction), in each case except any encumbrance or restriction:
(1a) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes Collateral Documents, the 2026 Secured Notes Indenture, the 2029 Unsecured Notes Indenture, the Notes, the 2026 Secured Notes, the 2029 Unsecured Notes, any Subsidiary Guarantee, any Guarantee of the 2026 Secured Notes or any Guarantee of the 2029 Unsecured Notes;
(2b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such PersonPerson (but not created in contemplation thereof), as in effect at the time of such acquisition, merger merger, consolidation or consolidation transaction (except to the extent that such Indebtedness was incurred Incurred to finance, or otherwise in connection with, such acquisition, merger merger, consolidation or consolidationtransaction); provided that for purposes of this clause (2Section 4.05(b), if a Person other than the Company or a Restricted Subsidiary is the Successor Company successor company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companysuccessor company;
(3c) 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 modifies or replaces, an any agreement or instrument referred to in clause (1Section 4.05(a) or (2Section 4.05(b) of or this Section 410 or this clause (34.05(c) (an “Initial Agreement”) or that is, or is contained in 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);
(4d) (A) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contractthereto, (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 or other security agreements securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) in joint venture and other similar agreements entered into or in the ordinary course shareholder, partnership, limited liability company and other similar agreements in respect of business)non-wholly owned Restricted Subsidiaries, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations or Bank Products Obligations, (J) customary net worth provisions contained in real property leases entered into by the Company or any Restricted Subsidiary, so long as the Company has determined in good faith that such net worth provisions could not reasonably be expected to impair the ability of the Company and its Restricted Subsidiaries to meet their ongoing obligations and (K) pursuant to any agreement providing for the subordination of Subordinated Obligations pursuant to the definition thereof;
(5e) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock Stock, property or assets of any Person, imposing restrictions with respect to such Restricted Subsidiary (or the Person, Capital Stock, property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6f) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(7g) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 4.03 (ix) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), ) or (iiy) 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 Company) and either (x1) the Company determines in good faith that such encumbrance or restriction will shall not materially affect the Company’s ability to make principal or interest payments on the Notes or (y2) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or 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 or pay any Indebtedness or other obligations owed to the Company, Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Company (or any Restricted Subsidiary, provided that dividend (x) the priority of any Preferred Stock in receiving dividends or liquidation priority between classes of Capital Stock, liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of any obligation (including the application of any remedy bars theretostandstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other obligation, will Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction.
(b) Section 4.05
(a) will not prohibit:
(1) any encumbrance or restriction pursuant to an (a) any Credit Facility (including the ABL Facility), (b) the Intercreditor Agreement and any Additional Intercreditor Agreement, (c) the Existing AMP Indentures, Existing AMP Notes or the Existing Note Guarantees and (d) any other agreement or instrument instrument, in each case, in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes, the Notes Guarantees or the Security Documents;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person, Person or relating to Indebtedness or any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person is was acquired by or merged merged, consolidated or consolidated otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, (other than Capital Stock or Indebtedness Incurred as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to financeconsideration 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 Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with, with such acquisition, merger or consolidation)transaction) and outstanding on such date; provided that that, for the purposes of this clause (2)clause, if a another Person other than the Company is the Successor Company with respect thereto(as defined below), any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, assumed by the Company or a any Restricted Subsidiary, as the case may be, Subsidiary when such Person becomes such the Successor Company;
(35) pursuant to an agreement any encumbrance, restriction 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 amendment, supplement or 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);condition:
(4) (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 contractcontract or agreement, or the assignment or transfer of any lease, license or other contractcontract or agreement;
(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 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;
(Bc) by virtue of contained in any transfer oftrading, netting, operating, construction, service, supply, purchase, sale or other agreement to transfer, option which the Company or right any of the Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with respect to, or Lien on, any past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or any such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges extend to any other asset or other security agreements securing Indebtedness property of a the Company or such Restricted Subsidiary to or the extent restricting the transfer assets or property of the property or assets subject thereto, another Restricted Subsidiary; or
(Dd) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Borrower will not, and will not permit any Material Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyBorrower or any Subsidiary Guarantor, (ii) make any loans or advances to the Company Borrower or any Subsidiary Guarantor or (iii) transfer any of its property or assets to the Company Borrower or any Subsidiary Guarantor (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1a) pursuant to an agreement or instrument in effect at or entered into on the Issue Closing Date, any Credit Facility, the Senior Subordinated IndentureFacilities, this Indenture, the Senior Notes Indenture and the Senior Subordinated Notes or the NotesIndenture;
(2b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company Borrower or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company 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); provided that for purposes of this clause (2subsection 7.9(b), if a Person other than the Company Borrower is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3c) 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 (1subsection 7.9(a) or (2b) of this Section 410 above or this clause (3subsection 7.9(c) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes 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 CompanyBorrower);
(4) (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, (Bii) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company Borrower or any Restricted Subsidiary not otherwise prohibited by this IndentureAgreement, (Ciii) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Borrower or any Restricted Subsidiary, (Ev) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (Fvi) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (Gvii) 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), (Hviii) 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 Borrower or any Restricted Subsidiary in any manner material to the Company Borrower or such Restricted Subsidiary, or (Iix) pursuant to Hedging ObligationsObligations entered into for bona fide hedging purposes;
(5e) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6f) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company Borrower or any Restricted Subsidiary or any of their businesses; or
(7g) pursuant to an agreement or instrument (Ai) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Closing Date pursuant to the provisions of Section 407 subsection 7.1, (iA) 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 Lenders than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the CompanyBorrower), or (iiB) if such encumbrance or restriction is encumbrances and restrictions are not materially more disadvantageous to the Holders of the Notes Lenders than is customary in comparable financings (as determined in good faith by the CompanyBorrower) and either (x) the Company Borrower determines in good faith that such encumbrance or restriction will not materially affect the CompanyBorrower’s ability to make principal or interest payments on the Notes Loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (Bii) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (Ciii) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Credit Agreement (HSI IP, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an any agreement or instrument in effect at or entered into on the Issue Date, any Credit Facilityincluding, the Senior Subordinated Indenturewithout limitation, this Indenture, the Notes, the Senior Subordinated Notes Credit Facility or the Notesany other Credit Facility;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging ObligationsObligations or (J) in connection with or relating to any Vehicle Rental Concession Right;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or Subsidiary, (C) of or relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose EntityEntity or (D) of a financing arrangement of a Special Purpose Entity organized outside the United States.
Appears in 1 contract
Samples: Indenture (Cendant Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (i) The Company Issuer will not, and will not permit any Restricted Subsidiary (other than a Guarantor) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to (iother than a Guarantor) to;
(1) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company, Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Company Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property properties or assets to the Company Issuer or any Restricted Subsidiary;
(provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars theretoii) to any other obligation, The preceding provisions will not be deemed to constitute such an encumbrance prohibit encumbrances or restriction), except any encumbrance restrictions existing under or restrictionby reason of:
(1) contractual encumbrances or restrictions pursuant to an agreement agreements or instrument instruments in effect at or entered into on as of the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2) pursuant to this Indenture, the Notes, the Security Agreements or the Note Guarantees;
(3) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company Issuer or any of its Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary Subsidiaries in connection with an acquisition of assets from such Person, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger which encumbrance or consolidation (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise the properties or assets of any Person, other than the Person and its Subsidiaries, or the properties or assets of the Person and its Subsidiaries, so acquired (including after acquired property);
(4) any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in connection withclauses (1), such acquisition(2), merger or consolidation(3) of this Section 4.1(h)(ii) or this clause (4); provided that for purposes such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith judgment of this clause (2)the Issuer, if a Person other no more restrictive than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any the agreements referred to in clauses (1), (2) or (3) of this Section 4.1(h)(ii) on the Issue Date or the date such Refinancing Agreement Restricted Subsidiary became a Restricted Subsidiary or Amendment taken as was merged into 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)Restricted Subsidiary, whichever is applicable;
(45) (Ain the case of Section 4.1(h)(i)(3), Liens permitted to be Incurred under the provisions of Section 4.1(g) that restricts in a customary manner limit the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary debtor to the extent restricting the transfer dispose of the assets securing such Indebtedness;
(6) purchase money obligations for property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into acquired in the ordinary course of business and Capitalized Lease Obligations permitted under this Indenture, in each case that impose encumbrances or restrictions of the nature described in clause (3) of Section 4.1(h)(i) on the property so acquired;
(7) contracts for the sale of assets, including but not limited customary restrictions with respect to leases and a Subsidiary of the Issuer 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) any customary provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business)business and with the approval of the Board of Directors;
(9) customary non-assignment provisions in leases, (H) that arises subleases or is agreed to licenses and other similar agreements entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligationsbusiness;
(510) with respect to a Restricted Subsidiary (encumbrances or any of its property restrictions arising or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; orand
(711) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements terms governing any Indebtedness if (as determined in good faith by the Company), Issuer) (i) the encumbrances or restrictions are ordinary and customary for a financing of that type and (ii) if such encumbrance the encumbrances or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and restrictions either (x) would not, at the Company determines in good faith that such encumbrance or restriction will not time agreed to, be expected to materially adversely affect the Company’s ability of the Issuer or any Guarantor to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect the case of a payment or financial covenant relating to such any Refinancing Indebtedness, (B) relating are, taken as a whole, no less favorable in any material respect to any sale the Holders of receivables by a Foreign Subsidiary or (C) relating to the Notes than those contained in the agreements governing the Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entitybeing refinanced.
Appears in 1 contract
Samples: Indenture (Auna S.A.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Borrower will not, and will not permit any Material Restricted Subsidiary to, to create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyBorrower, (ii) make any loans or advances to the Company Borrower or (iii) transfer any of its property or assets to the Company Borrower (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1a) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, Effective Date and any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company Borrower or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company 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); provided that for purposes of this clause (2subsection 7.9(b), if a Person other than the Company Borrower is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3c) 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 (1subsections 7.9(a) or (2b) of this Section 410 above or this clause (3subsection 7.9(c) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes 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 CompanyBorrower);
(4) (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, (Bii) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company Borrower or any Restricted Subsidiary not otherwise prohibited by this IndentureAgreement, (Ciii) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Borrower or any Restricted Subsidiary, (Ev) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (Fvi) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (Gvii) 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 entered into in the ordinary course of business)agreements, (Hviii) 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 Borrower or any Restricted Subsidiary in any manner material to the Company Borrower or such Restricted Subsidiary, or (Iix) pursuant to Hedging Obligations;
(5e) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6f) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company Borrower or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary or Home Warranty Subsidiary; or
(7g) pursuant to an agreement or instrument (Ai) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Effective Date pursuant to the provisions of Section 407 subsection 7.1, (iA) 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 Lenders than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the CompanyBorrower), or (iiB) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes Lenders than is customary in comparable financings (as determined in good faith by the CompanyBorrower) and either (x) the Company Borrower determines in good faith that such encumbrance or restriction will not materially affect the CompanyBorrower’s ability to make principal or interest payments on the Notes Loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (Bii) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (Ciii) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Credit Agreement (Servicemaster Global Holdings Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to to:
(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 Company, Company or any Restricted Subsidiary that is a Guarantor;
(ii2) make any loans or advances to the Company or any Restricted Subsidiary that is a Guarantor; or
(iii3) sell, lease or transfer any of its property or assets to the Company (or any Restricted Subsidiary that is a Guarantor; provided that dividend (x) the priority of any Preferred Stock in receiving dividends or liquidation priority between classes of Capital Stock, liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of any obligation (including the application of any remedy bars theretostandstill requirements to) loans or advances made to the Company or any Restricted Subsidiary that is a Guarantor to other obligation, will Indebtedness Incurred by the Company or any Restricted Subsidiary that is a Guarantor shall not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to an (i) any Credit Facility or (ii) any other agreement or instrument instrument, in each case, in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2) any encumbrance or restriction pursuant to this Indenture, the Notes and the Note Guarantees;
(3) any encumbrance or restriction pursuant to or arising or existing by reason of applicable law, rule, regulation or order, or required by any regulatory authority;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person, Person or relating to Indebtedness or any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person is was acquired by or merged merged, consolidated or consolidated otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, (other than Capital Stock or Indebtedness Incurred as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to financeconsideration 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 Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with, with such acquisition, merger or consolidation)transaction) and outstanding on such date; provided that that, for the purposes of this clause (24), if a another Person other than the Company is the Successor Company with respect theretoCompany, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, assumed by the Company or a any Restricted Subsidiary, as the case may be, Subsidiary when such Person becomes such the Successor Company;
(35) pursuant to an agreement any encumbrance or instrument restriction: (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 amendment, supplement or 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) (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 contractcontract or agreement, or the assignment or transfer of any lease, license or other contractcontract or agreement; (ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; (Biii) by virtue of contained in any transfer oftrading, netting, operating, construction, service, supply, purchase, sale or other agreement to transfer, option which the Company or right any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with respect to, or Lien on, any past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or any such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges extend to any other asset or other security agreements securing Indebtedness property of a the Company or such Restricted Subsidiary to or the extent restricting the transfer assets or property of the property another Restricted Subsidiary; or assets subject thereto, (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, ;
(E6) any encumbrance or restriction pursuant to Purchase Money Obligations and Finance Lease Obligations permitted under this Indenture, 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 any replacements 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 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 the Company or multiple financings of equipment provided by any Restricted Subsidiary in any manner material to the Company or lender, other equipment financed by such Restricted Subsidiary, or (I) pursuant to Hedging Obligationslender;
(57) with respect to a Restricted Subsidiary (any encumbrance or any of its property or assets) restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(68) customary provisions in leases, subleases, licenses, sublicenses, shareholder agreements, joint venture agreements and other similar agreements, organizational documents and instruments;
(9) 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 having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; orauthority;
(710) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Non-Guarantor Subsidiaries permitted to be Incurred or issued subsequent to the Issue Date pursuant Section 3.2 that impose restrictions solely on the Non-Guarantor Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument (A) relating to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 Holders of the Notes than (i) the encumbrances and restrictions contained in the Initial Agreements (Credit Agreement, together with the security documents associated therewith, or this Indenture as determined in good faith by effect on the Company), Issue Date or (ii) 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 Company) and where, in the case of clause (ii), either (xA) the Company determines in good faith at the time of entry into such agreement or instrument that such encumbrance encumbrances or restriction restrictions will not materially affect adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (yB) such encumbrance or restriction applies only if during the continuance of a default occurs in respect of a payment or financial covenant relating to such Indebtedness, agreement or instrument;
(B15) relating to any sale of receivables encumbrance or restriction existing by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor reason of any Special Purpose Entitylien permitted under Section 3.6; or
(16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (15) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement, refinancing or other modification to an agreement referred to in clauses (1) to (15) of this Section 3.4(b) or this clause (16); 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, modification, restatement, renewal, increase, supplement refunding, replacement, refinancing or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Samples: Indenture (Diversey Holdings, Ltd.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The From and after the Effective Date, the Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Effective Date or the Separation Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger merger, consolidation or consolidation transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger merger, consolidation or consolidationtransaction); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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, an any agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in in, any amendment, supplement or other modification to an any 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 the 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 to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contractthereto, (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 or other security agreements securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (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 Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or 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 entered into or in the ordinary course shareholder, partnership, limited liability company and other similar agreements in respect of business)non‑wholly owned Restricted Subsidiaries, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations or (J) pursuant to Bank Products Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject of any Person, imposed with respect to such restriction) Person, Capital Stock, property or assets pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Subsidiary’s status (or the status of any Subsidiary of such Subsidiary) as a Captive Insurance Subsidiary; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Effective Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company, which determination shall be conclusive), or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company, which determination shall be conclusive) and either (x) the Company determines in good faith (which determination shall be conclusive) that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary Subsidiary, (C) relating to Indebtedness of or a Franchise Financing Disposition by or to or in favor of any Franchisee or Franchise Special Purpose Entity or to any Franchise Lease Obligation or (CD) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. 5.1 The Company will Parent shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to to:
(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 Company, Parent or any Restricted Subsidiary;
(iib) make any loans or advances to the Company Parent or any Restricted Subsidiary; or
(iiic) sell, lease or transfer any of its property or assets to the Company (Parent or any Restricted Subsidiary, provided that dividend (x) the priority of any Preferred Stock in receiving dividends or liquidation priority between classes of Capital Stock, liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of any obligation (including the application of any remedy bars theretostandstill requirements to) loans or advances made to the Parent or any Restricted Subsidiary to other obligation, will Indebtedness Incurred by the Parent or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction), except .
5.2 The provisions of Section 4.1 shall not prohibit:
(a) any encumbrance or restriction:
(1) restriction pursuant to an (i) this Agreement, (ii) the Stretch Facility Agreement, (iii) the Credit Agreement, (iv) the Existing Cabot Notes Indentures or the Existing Encore Notes Indentures, or (v) any other agreement or instrument instrument, in each case, in effect at or entered into on the Issue Closing Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2b) any encumbrance or restriction pursuant to any an agreement or instrument of a Person, Person or relating to Indebtedness or any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person is was acquired by or merged merged, consolidated or consolidated otherwise combined with or into the Company Parent or any Restricted Subsidiary, or on which such agreement or instrument is assumed by the Company Parent or any Restricted Subsidiary in connection with an acquisition of assets from such Person, (other than Capital Stock or Indebtedness Incurred as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to financeconsideration in, or to provide all or any portion of the funds utilised to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by or was merged, consolidated or otherwise combined with or into the Parent or any Restricted Subsidiary or entered into in connection with, with such acquisition, merger or consolidation)transaction) and outstanding on such date; provided that that, for the purposes of this clause paragraph (2b), if a another Person other than the Company is the Successor Company with respect theretoCompany, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, assumed by the Company Parent or a any Restricted Subsidiary, as the case may be, Subsidiary when such Person becomes such the Successor Company;
(3c) any encumbrance or restriction 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 replacesrefinances, an agreement or instrument referred to in clause paragraphs (1a) or (2b) of this Section 410 4.2 or this clause paragraph (3c) (an “"Initial Agreement”") or contained in any amendment, supplement or other modification to an Initial Agreement agreement referred to in paragraphs (an “Amendment”a) or (b) of this Section 4.2 or this paragraph (c); provided, however, that the encumbrances and restrictions with respect to the Parent or any Restricted Subsidiary contained in any such Refinancing Agreement agreement or Amendment instrument are no less favourable in any material respect to the holders of the Encore Private Placement Notes taken as a whole are not materially less favorable to than the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement refinancing or Amendment amendment, supplement or other modification relates (as determined in good faith by the CompanyParent);
(4d) any encumbrance or restriction:
(Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, ;
(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, (Cii) contained in mortgages, pledges pledges, charges or other security agreements permitted under this Agreement or securing Indebtedness of the Parent or a Restricted Subsidiary permitted under this Agreement to the extent restricting such encumbrances or restrictions restrict the transfer of the property or assets subject theretoto such mortgages, pledges, charges or other security agreements; or
(Diii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Parent or any Restricted Subsidiary, ; (Ee) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalised Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired or assets so acquired, (F) on cash any encumbrance or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) restriction pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and a joint venture and other similar agreements entered into in agreement that imposes restrictions on the ordinary course transfer of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligationsjoint venture;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Senior Secured Note Purchase Agreement (Encore Capital Group Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Borrower will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyBorrower, (ii) make any loans or advances to the Company Borrower or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction)Borrower, except any encumbrance or restriction:;
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue DateDate (including, any without limitation, the Senior Credit Facility), the Senior Subordinated Indenture, this Note Indenture, the Senior Subordinated Notes Notes, or the Notesthis Agreement;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company Borrower or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company 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); , provided that for purposes of this clause (2), if a another Person other than the Company is the Successor Company with respect theretoCompany, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes such the Successor Company;
(3) 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 6.7 or this clause (3) (an “"Initial Agreement”") or contained in any amendment, supplement or other modification to an Initial Agreement (an “"Amendment”"); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes 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 CompanyBorrower);
(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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company Borrower or any Restricted Subsidiary not otherwise prohibited by this IndentureAgreement, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Borrower or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), ) or (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company Borrower or any Restricted Subsidiary in any manner material to the Company Borrower or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) required by reason of any applicable law, rule, regulation or order, order or required by any regulatory authority having jurisdiction over the Company Borrower or any Restricted Subsidiary or any of their businesses; or;
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 6.5, if the Borrower determines in good faith that the encumbrances and restrictions contained in any the agreements and instruments relating to such agreement or instrument Indebtedness, taken as a whole whole, are not materially less favorable to the Holders of the Notes Lenders than the encumbrances and restrictions contained in the Initial Agreements agreements and instruments referred to in clause (1) of this Section 6.7, (B) relating to Indebtedness of a Foreign Subsidiary incurred pursuant to clause (b)(i) or (b)(x) of Section 6.5, (C) relating to a sale of accounts receivable by a Foreign Subsidiary on customary terms (as determined in good faith by the Company), Borrower) or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (CD) relating to Indebtedness of or a Financing Disposition by or to or in favor by any Receivables Entity; or
(8) pursuant to an agreement or instrument relating to other Indebtedness of any Special Purpose EntityNAVL outstanding on the date of this Agreement or permitted to be Incurred under this Agreement.
Appears in 1 contract
Samples: Loan Agreement (Sirva Inc)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Indenture (New Sally Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to to:
(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 Company, Company or any Restricted Subsidiary;
(ii2) make any loans or advances to the Company or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary;
(provided that dividend or liquidation priority between classes b) The provisions of Capital Stock, or subordination of any obligation (including the application of any remedy bars theretoSection 3.4(a) to any other obligation, will shall not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restrictionprohibit:
(1) any encumbrance or restriction pursuant to an any Credit Facility or any other agreement or instrument instrument, in each case, in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2) any encumbrance or restriction pursuant to the Note Documents;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person, Person or relating to Indebtedness or any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person is was acquired by or merged merged, consolidated or consolidated otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, (other than Capital Stock or Indebtedness incurred as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to financeconsideration 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 Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with, with such acquisition, merger or consolidation)transaction) and outstanding on such date; provided that that, for the purposes of this clause (2)clause, if a another Person other than the Company is the Successor Company with respect theretoCompany, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, assumed by the Company or a any Restricted Subsidiary, as the case may be, Subsidiary when such Person becomes such the Successor Company;
(35) pursuant to an agreement any encumbrance 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 amendment, supplement or 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);restriction:
(4) (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 contractcontract or agreement, or the assignment or transfer of any lease, license or other contractcontract or agreement;
(ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(Biii) by virtue of contained in any transfer oftrading, netting, operating, construction, service, supply, purchase, sale or other agreement to transfer, option which the Company or right any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with respect to, or Lien on, any past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or any such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges extend to any other asset or other security agreements securing Indebtedness property of a the Company or such Restricted Subsidiary to or the extent restricting the transfer assets or property of the property or assets subject thereto, another Restricted Subsidiary; or
(Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, ;
(E6) 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 or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(57) with respect to a Restricted Subsidiary (any encumbrance or any of its property or assets) restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(68) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; orauthority;
(710) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(11) any encumbrance or restriction pursuant to an agreement or instrument Hedging Obligations;
(A12) relating to any other Indebtedness of Foreign Subsidiaries permitted to be Incurred incurred or issued subsequent to the Issue Date pursuant to the provisions of Section 407 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(i13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(14) 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 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 Holders of the Notes than (i) the encumbrances and restrictions contained in the Initial Agreements (Credit Agreement, together with the security documents associated therewith, or this Indenture as determined in good faith by effect on the Company), Issue Date or (ii) 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 Company) and where, in the case of clause (ii), either (xa) the Company determines in good faith at the time of entry into such agreement or instrument that such encumbrance encumbrances or restriction restrictions will not materially affect adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (yb) such encumbrance or restriction applies only if during the continuance of a default occurs in respect of a payment or financial covenant relating to such Indebtedness, agreement or instrument;
(B15) relating to any sale of receivables encumbrance or restriction existing by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor reason of any Special Purpose Entitylien permitted under Section 3.6; or
(16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses above or this clause (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses above or this clause; provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Appears in 1 contract
Samples: Indenture (TripAdvisor, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Borrower will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyBorrower, (ii) make any loans or advances to the Company Borrower or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction)Borrower, except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue DateDate (including, any Credit Facilitywithout limitation, the Senior Subordinated Indenture, this IndentureCredit Agreement), the Senior Subordinated Notes Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company Borrower or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company 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); , provided that for purposes of this clause (2), if a another Person other than the Company is the Successor Company with respect theretoCompany, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes such the Successor Company;
(3) 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 covenant or this clause (3) (an “"Initial Agreement”") or contained in any amendment, supplement or other modification to an Initial Agreement (an “"Amendment”"); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes taken as a whole than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the CompanyBorrower);
(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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company Borrower or any Restricted Subsidiary not otherwise prohibited by this the Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Borrower or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture ventures and other similar agreements entered into in the ordinary course of business), or (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company Borrower or any Restricted Subsidiary in any manner material to the Company Borrower or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) required by reason of any applicable law, rule, regulation or order, order or required by any regulatory authority having jurisdiction over the Company Borrower or any Restricted Subsidiary or any of their businessesbusiness; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of
Section I.1 of Section 407 (i) this Schedule if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company Borrower determines in good faith that such encumbrance or restriction will not materially affect cause the Company’s ability Borrower not to make have the funds necessary to pay the principal of or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such IndebtednessNotes, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of by any Special Purpose Receivables Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination 116 1010271152v11010271152_5.doc of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
: (1) pursuant to an agreement or instrument in effect at or entered into on the 2029 Secured Notes Issue Date, any Credit Facility, the Senior Subordinated IndentureExisting 2029 Notes Documents, the Existing 2029 Notes, this Indenture, the Senior Subordinated Notes Note Security Documents, the Intercreditor Agreements or the Notes;
; (2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger merger, consolidation or consolidation transaction (except to the extent that such Indebtedness was incurred Incurred to finance, or otherwise Incurred in connection with, such acquisition, merger merger, consolidation or consolidationtransaction); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
; (3) 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, an any agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in 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) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, (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 or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Fifth Supplemental Indenture (Cornerstone Building Brands, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability right of any Restricted Subsidiary to to:
(i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries or pay any Indebtedness or other obligations indebtedness owed to the Company, Company or its Restricted Subsidiaries;
(ii) make any loans or advances to the Company or any of its Restricted Subsidiaries; or
(iii) transfer any of its property properties or assets to the Company or any of its Restricted Subsidiaries.
(provided that dividend b) The preceding restrictions set forth in Section 4.08(a) above shall not apply to encumbrances or liquidation priority between classes of Capital Stock, restrictions existing under or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restrictionby reason of:
(1i) pursuant to an agreement or instrument Existing Indebtedness as in effect at or entered into on the Issue Date, any Credit Facility, date of this Indenture;
(ii) agreements existing on the Senior Subordinated Indenture, date of this Indenture, and any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings are no more restrictive, taken as a whole, with respect to dividend and other payment restrictions than those contained in agreements as in effect on the Senior Subordinated Notes or date of this Indenture, as determined in good faith by the Board of Directors;
(iii) this Indenture and the Notes;
(2iv) pursuant to applicable law;
(v) any agreement or instrument of a Person, or relating to governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any of its Restricted Subsidiary in connection with an acquisition of assets from such Person, Subsidiaries as in effect at the time of such acquisition, merger or consolidation acquisition (except to the extent that such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or 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 contractPerson, or the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this IndenturePerson, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(Fvi) on cash or customary non-assignment provisions in leases, licenses and other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, ;
(Gvii) pursuant to customary provisions contained in agreements and instruments entered into purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in this Section 4.08(a)(iii) on the property so acquired;
(including but not limited viii) any agreement for the sale of a Restricted Subsidiary (whether by stock sale, asset sale, merger, consolidation or otherwise) that restricts distributions by such Restricted Subsidiary pending its sale;
(ix) Permitted Refinancing Indebtedness, provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole (as determined in good faith by the Board of Directors), than those contained in the agreements governing the Indebtedness being refinanced;
(x) secured Indebtedness otherwise permitted to leases and be incurred pursuant to the provisions under Section 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(xi) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements entered into in the ordinary course of business), ;
(Hxii) that arises restrictions on cash or is agreed to other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligationsbusiness;
(5xiii) with respect restrictions relating to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Preferred Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businessesGuarantor that require that due and payable dividends thereon be paid in full prior to dividends on such Guarantor's common stock; or
(7xiv) pursuant to an restrictions on the assets of any Guarantor imposed by any agreement or instrument (A) charter provision evidencing Indebtedness or Capital Stock of such Guarantor that is otherwise permitted under this Indenture; provided, however, that the provisions relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) if the encumbrances and restrictions such encumbrance or restriction contained in any such agreement or instrument taken as a whole charter provision are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained Company in the Initial Agreements (any material respect as determined in good faith by the Company), or (ii) if Board of Directors of the Company than the provisions relating to such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary contained in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entitythis Indenture.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 6.8 or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or;
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 6.6 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity; or
(8) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (7) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive in any material respect with respect to such encumbrance and other restrictions, taken as a whole, than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Samples: Fifth Supplemental Indenture (Sally Beauty Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (i) The Company Issuer will not, and will not permit any Restricted Subsidiary (other than a Guarantor) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to (iother than a Guarantor) to;
(1) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company, Issuer or any Restricted Subsidiary;
(ii2) make any loans or advances to the Company Issuer or any Restricted Subsidiary; or
(iii3) sell, lease or transfer any of its property properties or assets to the Company Issuer or any Restricted Subsidiary;
(provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars theretoii) to any other obligation, The preceding provisions will not be deemed to constitute such an encumbrance prohibit encumbrances or restriction), except any encumbrance restrictions existing under or restrictionby reason of:
(1) contractual encumbrances or restrictions pursuant to an agreement agreements or instrument instruments in effect at or entered into on as of the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2) pursuant to this Indenture, the Notes and the Note Guarantees;
(3) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company Issuer or any of its Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary Subsidiaries in connection with an acquisition of assets from such Person, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger which encumbrance or consolidation (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise the properties or assets of any Person, other than the Person and its Subsidiaries, or the properties or assets of the Person and its Subsidiaries, so acquired (including after acquired property);
(4) any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in connection withclauses (1), such acquisition(2), merger (3) or consolidation(4) of this Section 4.1(h)(ii); provided that for purposes such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith judgment of this clause (2)the Issuer, if a Person other no more restrictive than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any the agreements referred to in clauses (1), (2) or (3) of this Section 4.1(h)(ii) on the Issue Date or the date such Refinancing Agreement Restricted Subsidiary became a Restricted Subsidiary or Amendment taken as was merged into 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)Restricted Subsidiary, whichever is applicable;
(45) (Ain the case of Section 4.1(h)(i)(3), Liens permitted to be Incurred under the provisions of Section 4.1(g) that restricts in a customary manner limit the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary debtor to the extent restricting the transfer dispose of the assets securing such Indebtedness;
(6) purchase money obligations for property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into acquired in the ordinary course of business and Capitalized Lease Obligations permitted under this Indenture, in each case that impose encumbrances or restrictions of the nature described in clause (3) of Section 4.1(h)(i) on the property so acquired;
(7) contracts for the sale of assets, including but not limited customary restrictions with respect to leases and a Subsidiary of the Issuer 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) any customary provisions in joint venture agreements relating to joint ventures that are not Restricted Subsidiaries and other similar agreements entered into in the ordinary course of business)business and with the approval of the Board of Directors;
(9) customary non-assignment provisions in leases, (H) that arises subleases or is agreed to licenses and other similar agreements entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligationsbusiness;
(510) with respect to a Restricted Subsidiary (encumbrances or any of its property restrictions arising or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) existing by reason of applicable law or any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; orand
(711) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements terms governing any Indebtedness if (as determined in good faith by the Company), Issuer) (i) the encumbrances or restrictions are ordinary and customary for a financing of that type and (ii) if such encumbrance the encumbrances or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and restrictions either (x) would not, at the Company determines in good faith that such encumbrance or restriction will not time agreed to, be expected to materially adversely affect the Company’s ability of the Issuer or any Guarantor to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect the case of a payment or financial covenant relating to such any Refinancing Indebtedness, (B) relating are, taken as a whole, no less favorable in any material respect to any sale the Holders of receivables by a Foreign Subsidiary or (C) relating to the Notes than those contained in the agreements governing the Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entitybeing refinanced.
Appears in 1 contract
Samples: Indenture (Auna S.A.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyCompany or, in the case of a Restricted Subsidiary that is not a Subsidiary Guarantor, to a Subsidiary Guarantor, (ii) make any loans or advances to the Company or, in the case of a Restricted Subsidiary that is not a Subsidiary Guarantor, to a Subsidiary Guarantor or (iii) transfer any of its property or assets to the Company or, in the case of a Restricted Subsidiary that is not a Subsidiary Guarantor, to a Subsidiary Guarantor (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Note Security Documents, the Intercreditor Agreements, the Notes, the Senior Second Priority Note Documents, the Senior Second Priority Notes, the Senior Unsecured Indenture, the Senior Unsecured Notes, the Senior Subordinated Notes Indenture or the Senior Subordinated Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements entered into in the ordinary course of business)agreements, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations entered into for bona fide hedging purposes or (J) pursuant to Bank Products Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) ), imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Indenture (Hd Supply, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Existing Secured Notes, the Existing Secured Notes Indenture, this Indenture, the Senior Subordinated Notes or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger merger, consolidation or consolidation transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger merger, consolidation or consolidationtransaction); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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, an any agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in in, any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) (A) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contractthereto, (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 or other security agreements securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements entered into or in the ordinary course shareholder, partnership, limited liability company and other similar agreements in respect of business)non-wholly owned Restricted Subsidiaries, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations or Bank Products Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock Stock, property or assets of any Person, property or assets, imposing restrictions with respect to such Restricted Subsidiary (or the Person, Capital Stock, property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), ) or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Indenture (US Foods Holding Corp.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Existing Unsecured Notes, the Existing Unsecured Notes Indenture, this Indenture, the Senior Subordinated Notes, the Secured Notes or the Notesindenture or collateral documentation with respect thereto;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger merger, consolidation or consolidation transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger merger, consolidation or consolidationtransaction); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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, an any agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in in, any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) pursuant to customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(5) (A) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contractthereto, (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 or other security agreements securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements entered into or in the ordinary course shareholder, partnership, limited liability company and other similar agreements in respect of business)non-wholly owned Restricted Subsidiaries, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations, Bank Products Obligations or Open Account Obligations;
(56) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock Stock, property or assets of any Person, property or assets, imposing restrictions with respect to such Restricted Subsidiary (or the Person, Capital Stock, property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(67) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(7) 8) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), ) or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose EntityReceivables Subsidiary.
Appears in 1 contract
Samples: Indenture (L Brands, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (ia) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (iib) make any loans or advances to the Company or (iiic) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1i) pursuant to an agreement or instrument in effect at or entered into on the Issue Closing Date, any Credit Facility, the Senior Subordinated Indenturethis Agreement, this Indentureany Incremental Equivalent Debt, any Additional Non-ABL Secured Debt Obligations, the Senior Subordinated Notes or the Notesindenture with respect thereto;
(2ii) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger merger, consolidation or consolidation transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger merger, consolidation or consolidationtransaction); provided that for purposes of this clause (2(ii), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3iii) 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, an any agreement or instrument referred to in clause (1i) or (2ii) of this Section 410 6.03 or this clause (3(iii) (an “Initial Agreement”) or that is, or is contained in 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 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 Company);
(4iv) pursuant to customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(A) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contractthereto, (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 (including IP Rights) not otherwise prohibited by this IndentureAgreement, (C) contained in mortgages, pledges or other security agreements securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases leases, licenses and sublicenses) or in joint venture and other similar agreements entered into or in the ordinary course shareholder, partnership, limited liability company and other similar agreements in respect of business)non-wholly owned Restricted Subsidiaries, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations, Bank Products Obligations or Open Account Obligations;
(5vi) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock Stock, property or assets of any Person, property or assets, imposing restrictions with respect to such Restricted Subsidiary (or the Person, Capital Stock, property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6vii) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(7viii) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Closing Date pursuant to the provisions of Section 407 Section 6.01 (i1) 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 Lenders than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), ) or (ii2) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes Lenders than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes Loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose EntityReceivables Subsidiary.
Appears in 1 contract
Samples: First Lien Credit Agreement (Victoria's Secret & Co.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction)Company, except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue DateDate (including, any Credit Facilitywithout limitation, the Senior Subordinated IndentureCredit Facility), this Indenture, the Senior Subordinated Notes Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); , provided that for purposes of this clause (2), if a another Person other than the Company is the Successor Company with respect theretoCompany, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such the Successor Company;
(3) 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 4.09 or this clause (3) (an “"Initial Agreement”") or contained in any amendment, supplement or other modification to an Initial Agreement (an “"Amendment”"); provided, however, that the encumbrances and restrictions contained in any such 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), ) or (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) required by reason of any applicable law, rule, regulation or order, order or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 4.06, if the Company determines in good faith that the encumbrances and restrictions contained in any the agreements and instruments relating to such agreement or instrument Indebtedness, taken as a whole whole, are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in the Initial Agreements agreements and instruments referred to in clause (as determined in good faith by the Company)1) of this Section 4.09, (B) relating to Indebtedness of a Foreign Subsidiary incurred pursuant to clause (b)(i) or (iib)(x) if such encumbrance or restriction is not materially more disadvantageous of Section 4.06, (C) relating to the Holders a sale of the Notes than is accounts receivable by a Foreign Subsidiary on customary in comparable financings terms (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (CD) relating to Indebtedness of or a Financing Disposition by or to or in favor of by any Special Purpose Receivables Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to to:
(i1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company, Company or any of its Restricted Subsidiaries;
(ii2) make any loans or advances to the Company or any of its Restricted Subsidiaries; or
(iii3) transfer any of its property properties or assets to the Company or any of its Restricted Subsidiaries.
(provided that dividend or liquidation priority between classes of Capital Stockb) However, or subordination of any obligation (including the application of any remedy bars theretoSection 4.13(a) to any other obligation, hereof will not be deemed apply to constitute such an encumbrance encumbrances or restriction), except any encumbrance restrictions existing under or restrictionby reason of:
(1) pursuant to an agreement or instrument Existing Indebtedness as in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the Notesdate hereof;
(2) pursuant to this Indenture, the Notes or the Subsidiary Guarantee;
(3) applicable law, rules or regulations;
(4) any agreement or instrument of a Person, or relating to governing Indebtedness (including Acquired Debt) or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any of its Restricted Subsidiary in connection with an acquisition of assets from such Person, Subsidiaries as in effect at the time of such acquisition, merger or consolidation acquisition (except to the extent that such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or 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 contractPerson, or the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this IndenturePerson, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, PROVIDED that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(F5) on cash non-assignment provisions in leases, licenses or other deposits or net worth imposed by customers or suppliers under similar agreements entered into in the ordinary course of business, business and consistent with past practices;
(G6) pursuant to customary provisions contained in agreements and instruments entered into purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in Section 4.13(a)(3) hereof;
(including but not limited 7) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(8) Liens securing Indebtedness that limit the right of the debtor to leases and dispose of the assets subject to such Lien;
(9) 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), ;
(H10) that arises restrictions on cash or is agreed to other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business and does business;
(11) the Senior Credit Agreement as in effect on the date of this Indenture;
(12) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;
(13) encumbrances or restrictions existing under or arising pursuant to Credit Facilities entered into in accordance with this Indenture; PROVIDED that the encumbrances or restrictions in such Credit Facilities are not detract from materially more restrictive to the value borrower than those applicable to the borrower under the Senior Credit Agreement as in effect on the date of property this Indenture (other than encumbrances or assets restrictions in Credit Facilities entered into by a Restricted Subsidiary of the Company to finance some or any all of the purchase price of a Restricted Subsidiary in any manner material and which only apply to the Company or Restricted Subsidiary so acquired and such Restricted Subsidiary, or (I) pursuant to Hedging Obligations's assets);
(514) any Purchase Money Note or other Indebtedness or other contractual requirements of a Receivables Subsidiary in connection with respect a Qualified Receivables Transaction; PROVIDED that such restrictions apply only to a such Receivables Subsidiary;
(15) encumbrances or restrictions under Indebtedness incurred by the Restricted Subsidiary (Subsidiaries owning the assets that comprise the Kildare Hotel and Country Club, which encumbrance or restriction is not applicable to any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (other Persons or the property or assets of any other Person; PROVIDED that are subject such Indebtedness was permitted by the terms of this Indenture; and
(16) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in Sections 4.13(b)(1) through (15); PROVIDED that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Board of Directors of the Company, not materially more restrictive with respect to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 Holders of the Notes than the encumbrances and restrictions those contained in the Initial Agreements (as determined in good faith by the Company), dividends or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a other payment or financial covenant relating restrictions prior to such Indebtednessamendment, (B) relating to any sale of receivables by a Foreign Subsidiary modification, restatement, renewal, increase, supplement, refunding, replacement or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entityrefinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes, the Existing Notes or the Notesany Existing Notes Indenture;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date November 27, 2006 pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.or
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Borrower will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyBorrower, (ii) make any loans or advances to the Company Borrower or (iii) transfer any of its property or assets to the Company Borrower (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1a) pursuant to an agreement or instrument in effect at or entered into on the Issue Closing Date, any Credit FacilityFacility (including without limitation, the Senior Subordinated IndentureTerm Facility and the ABL Facility), this the Senior Notes Indenture, the Senior Subordinated Notes Indenture, the Senior Notes or the Senior Subordinated Notes;
(2b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company Borrower or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company 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); provided that for purposes of this clause (2subsection 7.10(b), if a Person other than the Company Borrower is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3c) 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 (1subsections 7.10(a) or (2b) of this Section 410 above or this clause (3subsection 7.10(c) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes 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 CompanyBorrower);
(4) (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, (Bii) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company Borrower or any Restricted Subsidiary not otherwise prohibited by this the applicable Indenture, (Ciii) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (Div) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company Borrower or any Restricted Subsidiary, (Ev) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (Fvi) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (Gvii) 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), (Hviii) 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 Borrower or any Restricted Subsidiary in any manner material to the Company Borrower or such Restricted Subsidiary, or (Iix) pursuant to Hedging Obligations;
(5e) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6f) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company Borrower or any Restricted Subsidiary or any of their businesses; or
(7g) pursuant to an agreement or instrument (Ai) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Closing Date pursuant to the provisions of Section 407 subsection 7.2, (iA) 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 Lenders than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the CompanyBorrower), or (iiB) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes Lenders than is customary in comparable financings (as determined in good faith by the CompanyBorrower) and either (x) the Company Borrower determines in good faith that such encumbrance or restriction will not materially affect the CompanyBorrower’s ability to make principal or interest payments on the Notes Term Loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (Bii) relating to any sale of receivables by a Foreign Subsidiary or (Ciii) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction)Company, except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated IndentureExisting Indentures, the Existing Notes, this Indenture, the Senior Subordinated Notes Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred Incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a another Person other than the Company is the Successor Company with respect theretoCompany, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such the Successor Company;
(3) 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 amendment, supplement or 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 taken as a whole than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, Subsidiary or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 407, (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or Subsidiary, (C) relating to Indebtedness of or a Financing Disposition by or to or in favor by any Receivables Entity or (D) relating to Indebtedness of any Special Purpose Entitya Foreign Subsidiary.
Appears in 1 contract
Samples: Supplemental Indenture (Graphic Packaging Holding Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will shall not be deemed to constitute such an encumbrance or restriction), in each case except any encumbrance or restriction:
(1a) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes Securities or the Notesany Subsidiary Guarantee;
(2b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such PersonPerson (but not created in contemplation thereof), as in effect at the time of such acquisition, merger merger, consolidation or consolidation transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger merger, consolidation or consolidationtransaction); provided that for purposes of this clause (2Section 4.05(b), if a Person other than the Company or a Restricted Subsidiary is the Successor Company successor company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companysuccessor company;
(3c) 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 modifies or replaces, an any agreement or instrument referred to in clause (1Sections 4.05(a) or (24.05(b) of or this Section 410 or this clause (34.05(c) (an “Initial Agreement”) or that is, or is contained in 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 Securities 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) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contractthereto, (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 or other security agreements securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) in joint venture and other similar agreements entered into or in the ordinary course shareholder, partnership, limited liability company and other similar agreements in respect of business)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, Subsidiary or (I) pursuant to Hedging Obligations or Bank Products Obligations;
(5e) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock Stock, property or assets of any Person, imposing restrictions with respect to such Restricted Subsidiary (or the Person, Capital Stock, property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6f) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(7g) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 4.03 (ix) 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 Securities than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), ) or (iiy) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes Securities than is customary in comparable financings (as determined in good faith by the Company) and either (x1) the Company determines in good faith that such encumbrance or restriction will shall not materially affect the Company’s ability to make principal or interest payments on the Notes Securities or (y2) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Borrower will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyBorrower, (ii) make any loans or advances to the Company Borrower or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction)Borrower, except any encumbrance or restriction:
(1a) pursuant to an agreement agreement, arrangement or instrument in effect at or entered into on the Issue 2021 Amendment Effective Date, any Credit Facility, and, on and after the Senior Subordinated Indentureexecution and delivery thereof, this Indentureany Intercreditor Agreement, the Senior Subordinated any Permitted Debt Exchange Notes or the Notes(and any related documents) and any Additional Obligations Documents;
(2b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company Borrower or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger merger, consolidation or consolidation transaction (except to the extent that such Indebtedness was incurred Incurred to finance, or otherwise in connection with, such acquisition, merger merger, consolidation or consolidationtransaction); provided that for purposes of this clause (2subsection 7.9(b), if a Person other than the Company Borrower is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3c) 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, an any agreement or instrument referred to in clause (1subsections 7.9(a) or (2b) of this Section 410 above or this clause (3subsection 7.9(c) (an “Initial Agreement”) or that is, or is contained in 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 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 CompanyBorrower, which determination shall be conclusive);
(4i) (A) 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 to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contractthereto, (Bii) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company Borrower or any Restricted Subsidiary not otherwise prohibited by this IndentureAgreement, (Ciii) contained in mortgages, pledges or other security agreements securing Indebtedness or other obligations of the Borrower or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (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 Company Borrower or any Restricted Subsidiary, (Ev) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (Fvi) on cash or other deposits or deposits, net worth or inventory imposed by customers or suppliers under agreements entered 152 [[5629054]] into in the ordinary course of business, (Gvii) 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 entered into or in the ordinary course shareholder, partnership, limited liability company and other similar agreements in respect of business)non-wholly owned Restricted Subsidiaries, (Hviii) 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 Borrower or any Restricted Subsidiary in any manner material to the Company Borrower or such Restricted Subsidiary, or (Iix) pursuant to Hedging ObligationsObligations 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;
(5e) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock (A) property or assets of such Restricted Subsidiary or (B) all or substantially all of the property or assets that are subject to Capital Stock of such restriction) Restricted Subsidiary, in each case, pending the closing of such sale or disposition;
(6f) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company Borrower or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary or Home Warranty Subsidiary; or
(7g) pursuant to an agreement or instrument (Ai) relating to any Indebtedness permitted to be Incurred subsequent to the Issue 2021 Amendment Effective Date pursuant to the provisions of Section 407 subsection 7.1, (iA) 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 Lenders than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the CompanyBorrower, which determination shall be conclusive), or (iiB) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes Lenders than is customary in comparable financings (as determined in good faith by the CompanyBorrower, which determination shall be conclusive) and either (x) the Company Borrower determines in good faith faith, which determination shall be conclusive, that such encumbrance or restriction will not materially affect the CompanyBorrower’s ability to make principal or interest payments on the Notes Loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (Bii) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (Ciii) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Credit Agreement (Frontdoor, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Borrower will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyBorrower, (ii) make any loans or advances to the Company Borrower or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction)Borrower, except any encumbrance or restriction:
(1a) pursuant to an agreement agreement, arrangement or instrument in effect at or entered into on the Issue 2021 Amendment Effective Date, any Credit Facility, and, on and after the Senior Subordinated Indentureexecution and delivery thereof, this Indentureany Intercreditor Agreement, the Senior Subordinated any Permitted Debt Exchange Notes or the Notes(and any related documents) and any Additional Obligations Documents;
(2b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company Borrower or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger merger, consolidation or consolidation transaction (except to the extent that such Indebtedness was incurred Incurred to finance, or otherwise in connection with, such acquisition, merger merger, consolidation or consolidationtransaction); provided that for purposes of this clause (2subsection 7.9(b), if a Person other than the Company Borrower is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3c) 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, an any agreement or instrument referred to in clause (1subsections 7.9(a) or (2b) of this Section 410 above or this clause (3subsection 7.9(c) (an “Initial Agreement”) or that is, or is contained in 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 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 CompanyBorrower, which determination shall be conclusive);
(4i) (A) 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 to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contractthereto, (Bii) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company Borrower or any Restricted Subsidiary not otherwise prohibited by this IndentureAgreement, (Ciii) contained in mortgages, pledges or other security agreements securing Indebtedness or other obligations of the Borrower or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (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 Company Borrower or any Restricted Subsidiary, (Ev) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (Fvi) on cash or other deposits or deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (Gvii) 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 entered into or in the ordinary course shareholder, partnership, limited liability company and other similar agreements in respect of business)non-wholly owned Restricted Subsidiaries, (Hviii) 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 Borrower or any Restricted Subsidiary in any manner material to the Company Borrower or such Restricted Subsidiary, or (Iix) pursuant to Hedging ObligationsObligations 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;
(5e) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock (A) property or assets of such Restricted Subsidiary or (B) all or substantially all of the property or assets that are subject to Capital Stock of such restriction) Restricted Subsidiary, in each case, pending the closing of such sale or disposition;
(6f) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company Borrower or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary or Home Warranty Subsidiary; or
(7g) pursuant to an agreement or instrument (Ai) relating to any Indebtedness permitted to be Incurred subsequent to the Issue 2021 Amendment Effective Date pursuant to the provisions of Section 407 subsection 7.1, (iA) 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 Lenders than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the CompanyBorrower, which determination shall be conclusive), or (iiB) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes Lenders than is customary in comparable financings (as determined in good faith by the CompanyBorrower, which determination shall be conclusive) and either (x) the Company Borrower determines in good faith faith, which determination shall be conclusive, that such encumbrance or restriction will not materially affect the CompanyBorrower’s ability to make principal or interest payments on the Notes Loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (Bii) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (Ciii) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Credit Agreement (Frontdoor, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any such Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock to the Company or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, Date or pursuant to any Credit Debt Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger merger, consolidation or consolidation transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger merger, consolidation or consolidationtransaction); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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, an any agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in in, any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) pursuant to customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(5) (A) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contractthereto, (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 or other security agreements securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or deposits, net worth or inventory imposed by customers customers, lessors or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements entered into or in the ordinary course shareholder, partnership, limited liability company and other similar agreements in respect of business)non-Wholly Owned Restricted Subsidiaries, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations, Bank Products Obligations, Third-Party Vendor Financing Programs or Qualified Receivables Transactions;
(56) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock Stock, property or assets of any Person, property or assets, imposing restrictions with respect to such Restricted Subsidiary (or the Person, Capital Stock, property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(67) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) 8) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), ) or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose EntityReceivables Subsidiary.
Appears in 1 contract
Samples: Indenture (Xerox Corp)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company Borrower will not, and will not permit any Material Restricted Subsidiary to, to create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyBorrower, (ii) make any loans or advances to the Company Borrower or (iii) transfer any of its property or assets to the Company Borrower (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1a) pursuant to an agreement or instrument in effect at or entered into on the Issue Closing Date, any Credit Facility (including without limitation, the Revolving Facility), the Senior Interim Loan Facility, the Senior Subordinated Indenture, this Indenture, Existing Notes Indenture and the Senior Subordinated Notes or the Existing Notes;
(2b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company Borrower or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company 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); provided that for purposes of this clause (2subsection 7.9(b), if a Person other than the Company Borrower is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3c) 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 (1subsections 7.9(a) or (2b) of this Section 410 above or this clause (3subsection 7.9(c) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes 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 CompanyBorrower);
(4) (Ai) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, (Bii) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company Borrower or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.Agreement,
Appears in 1 contract
Samples: Credit Agreement (Servicemaster Co)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will shall not be deemed to constitute such an encumbrance or restriction), in each case except any encumbrance or restriction:
(1a) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes Collateral Documents, the 2023 Indenture, the 2025 Indenture, the Notes, the 2023 Notes, the 2025 Notes, any Subsidiary Guarantee, any Guarantee of the 2023 Notes or any Guarantee of the 2025 Notes;
(2b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such PersonPerson (but not created in contemplation thereof), as in effect at the time of such acquisition, merger merger, consolidation or consolidation transaction (except to the extent that such Indebtedness was incurred Incurred to finance, or otherwise in connection with, such acquisition, merger merger, consolidation or consolidationtransaction); provided that for purposes of this clause (2Section 4.05(b), if a Person other than the Company or a Restricted Subsidiary is the Successor Company successor company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companysuccessor company;
(3c) 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 modifies or replaces, an any agreement or instrument referred to in clause (1Section 4.05(a) or (2Section 4.05(b) of or this Section 410 or this clause (34.05(c) (an “Initial Agreement”) or that is, or is contained in 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);
(4d) (A) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contractthereto, (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 or other security agreements securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) in joint venture and other similar agreements entered into or in the ordinary course shareholder, partnership, limited liability company and other similar agreements in respect of business)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, Subsidiary or (I) pursuant to Hedging Obligations or Bank Products Obligations;
(5e) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock Stock, property or assets of any Person, imposing restrictions with respect to such Restricted Subsidiary (or the Person, Capital Stock, property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6f) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
(7g) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 4.03 (ix) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), ) or (iiy) 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 Company) and either (x1) the Company determines in good faith that such encumbrance or restriction will shall not materially affect the Company’s ability to make principal or interest payments on the Notes or (y2) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this IndentureABL Facility, the Senior Subordinated Term Facility, the Opco Senior Notes Documents, the Opco Senior Notes, this Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger merger, consolidation or consolidation transaction (except to the extent that such Indebtedness was incurred Incurred to finance, or otherwise Incurred in connection with, such acquisition, merger merger, consolidation or consolidationtransaction); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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, an any agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in 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 to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contractthereto, (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 or other security agreements securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (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 Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth 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 entered into or in the ordinary course shareholder, partnership, limited liability company and other similar agreements in respect of business)non-wholly owned Restricted Subsidiaries, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging ObligationsObligations or Bank Products Obligations or (J) that arises under the terms of documentation governing any factoring agreement or any similar arrangements that in the good faith determination of the Company, which determination shall be conclusive, are necessary or appropriate to effect such factoring agreement or similar arrangements;
(5) 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 other disposition of all or substantially all the Capital Stock Stock, property or assets of any Person, imposing restrictions with respect to such Restricted Subsidiary (or the Person, Capital Stock, property or assets that are subject to such restriction) pending the closing of such sale or other disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as an Insurance Subsidiary; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), which determination shall be conclusive) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company, which determination shall be conclusive) and either (x) the Company determines in good faith faith, which determination shall be conclusive, that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs under a circumstance described in Section 601(viii) below or in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Indenture (Core & Main, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock Equity Interests or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital StockEquity Interests, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an any agreement or instrument in effect at or entered into on the Issue Date, any Credit Facilityincluding, the Senior Subordinated Indenturewithout limitation, this Indenture, the Notes, the Senior Subordinated Notes Note Indenture, the Senior Subordinated Notes, the Floating Rate Senior Note Indenture, the Floating Rate Senior Notes, the Senior Credit Facility or the Notesany other Credit Facility;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock Equity Interests of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases leases, sale and leaseback agreements, asset sale agreements and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock Equity Interests or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, Indebtedness or (B) relating to any sale of receivables by a Foreign Subsidiary of, or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
Samples: Indenture (Adesa California, LLC)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 6.8 or this clause (3) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.,
Appears in 1 contract
Samples: Third Supplemental Indenture (Sally Beauty Holdings, Inc.)
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the CompanyCompany or its Restricted Subsidiaries, (ii) make any loans or advances to the Company or its Restricted Subsidiaries or (iii) transfer any of its property or assets to the Company or its Restricted Subsidiaries (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1a) pursuant to an the Loan Documents, the ABL Loan Documents and the 2025 Senior Unsecured Notes Indenture or any other agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes or the NotesClosing Date and set forth on Schedule 6.03;
(2b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2b), if a Person other than the Company is the Successor Company surviving entity with respect theretoto such merger or consolidation, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companysurviving entity;
(3c) 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 (1a) or (2b) of this Section 410 6.03 or this clause (3c) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes 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 Company);
(4d) (A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, (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 IndentureAgreement, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging ObligationsAgreements;
(5e) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6f) by reason of any applicable lawLaw, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or;
(7g) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Closing Date pursuant to the provisions of Section 407 6.01 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes Lenders than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes Lenders than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes Loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity; or
(h) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (a) through (g) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Borrowers, no more restrictive in any material respect with respect to such encumbrance and other restrictions, taken as a whole, than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to to:
(i1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company or any Restricted Subsidiary or pay any Indebtedness or other obligations owed to the Company, Company or any Restricted Subsidiary; (ii2) make any loans or advances to the Company or any Restricted Subsidiary; or (iii3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary,
(provided that dividend or liquidation priority between classes b) The provisions of Capital Stock, or subordination of any obligation (including the application of any remedy bars theretoSection 4.07(a) to any other obligation, hereof will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restrictionprohibit:
(1) any encumbrance or restriction pursuant to an any Credit Facility or any other agreement or instrument instrument, in each case, in effect at or entered into on the Issue Date, and any Credit Facilityamendments, the Senior Subordinated Indenturerestatements, modifications, renewals, supplements, refundings, ...
(2) [Reserved]; (3) encumbrances or restrictions existing under or by reason of this Indenture, the Notes, the Note Guarantees, the Senior Subordinated Notes, the Senior Notes or Indentures, the Holdco Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Personthe Holdco Notes Guarantee, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or 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 Holdco 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.Existing Senio...
Appears in 1 contract
Samples: Indenture
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, the Senior Subordinated Indenture, this Indenture, the Senior Subordinated Notes, the Existing Notes or the Notesany Existing Notes Indenture;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(3) 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 amendment, supplement or 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 the assignment or transfer of any lease, license or other contract, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date November 27, 2006 pursuant to the provisions of Section 407 (i) 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 the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or (ii) 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 Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Appears in 1 contract
