Payment Restrictions Affecting Restricted Subsidiaries. The Borrower will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of the Borrower to: (1) pay dividends or make any other distributions on or in respect of its Capital Stock; (2) make loans or advances to the Borrower or any other Restricted Subsidiary or to pay any Indebtedness owed to the Borrower or any other Restricted Subsidiary of the Borrower; or (3) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary of the Borrower, except in each case for such encumbrances or restrictions existing under or by reason of: (a) applicable law, rule, regulation or order; (b) the Second Lien Notes Documentation; (c) customary non assignment provisions of any contract or license or any lease governing a leasehold interest of any Restricted Subsidiary of the Borrower; (d) any instrument governing Acquired Indebtedness or Capital Stock, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired; (e) agreements existing on the Closing Date to the extent and in the manner such agreements are in effect on the Closing Date; (f) this Agreement and other Loan Documents; (g) the Senior Subordinated Notes, the Senior Subordinated Notes Indenture and related guarantees; (h) restrictions on the transfer of assets subject to any Lien permitted under Section 7.3 imposed by the holder of such Lien; (i) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business; (j) Purchase Money Indebtedness or Capitalized Lease Obligations that, in each case, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 on the property so acquired; (k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary; (l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; (m) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business; (n) Indebtedness or Capital Stock of any Restricted Subsidiary (i) that is a Guarantor that is incurred subsequent to the Closing Date or (ii) that is incurred by a Foreign Subsidiary of the Borrower subsequent to the Closing Date; (o) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (b), (d), (e), (g) and (h) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to the Borrower in any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b), (d), (e), (g) and (h); and (p) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to Section 7.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (i) the encumbrances and restrictions contained in this Agreement, together with the Security Documents as in effect on the Closing Date or (ii) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (ii), either (a) the Borrower determines at the time of incurrence or issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) such encumbrance or restriction applies only during the continuance of a default relating to such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Radiation Therapy Services Holdings, Inc.), Credit Agreement (Radiation Therapy Services Holdings, Inc.)
Payment Restrictions Affecting Restricted Subsidiaries. The Borrower Issuer will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of the Borrower to:
to (1i) (A) pay dividends or make any other distributions on to the Issuer or in respect any of its Restricted Subsidiaries (1) on its Capital Stock;
Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (B) pay any indebtedness owed to the Issuer or any of its Restricted Subsidiaries, (ii) make loans or advances to the Borrower Issuer or any other of its Restricted Subsidiary Subsidiaries or to pay any Indebtedness owed to the Borrower or any other Restricted Subsidiary of the Borrower; or
(3iii) transfer any of its property properties or assets to the Borrower Issuer or any other of its Restricted Subsidiary of the BorrowerSubsidiaries, except in each case for such encumbrances or restrictions existing under or by reason of:
of (aA) Existing Debt, (B) the Senior Credit Facility as in effect on the date of this Indenture, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are not materially more restrictive taken as a whole with respect to such dividend and other payment restrictions than those contained in the Senior Credit Facility as in effect on the date of this Indenture (as determined by the Board of Directors of the Issuer in its reasonable and good faith judgment), (C) (1) this Indenture and the Securities and (2) the Senior Subordinated Note Indenture and the Senior Subordinated Notes, (D) applicable law, rule, regulation or order;
(b) the Second Lien Notes Documentation;
(c) customary non assignment provisions of any contract or license or any lease governing a leasehold interest of any Restricted Subsidiary of the Borrower;
(dE) any instrument governing Acquired Indebtedness Debt or Capital StockStock of a Person acquired by the Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Debt was incurred or such encumbrance or restriction was established in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
, provided that, in the case of Debt, such Debt was permitted by the terms of this Indenture to be incurred, (eF) customary non-assignment provisions in leases and other agreements existing entered into in the ordinary course of business and consistent with past practices, restricting assignment or restricting transfers of non-cash assets, (G) Purchase Money Obligations for property acquired in the ordinary course of business and other Liens permitted by this Indenture, in each case that impose restrictions of the nature described in clause (iii) above on the Closing Date property so acquired (or subject to such Liens), (H) Debt permitted under clause (x) of Section 4.12(b), (I) Permitted Refinancing Debt, provided that the restrictions contained in the agreements governing such Permitted Refinancing Debt are not materially more restrictive taken as a whole than those contained in the agreements governing the Debt being refinanced (as determined by the Board of Directors of the Issuer in its reasonable and good faith judgment), (J) contracts for the sale of assets or Equity Interests to the extent and that any such contract imposes restrictions of the nature described in the manner such agreements are in effect clause (iii) above on the Closing Date;
property to be sold, (fK) this Agreement and other Loan Documents;
any pledge by the Issuer or a Restricted Subsidiary of the Equity Interests of an Unrestricted Subsidiary to support the Debt thereof, (gL) secured Debt otherwise permitted to be incurred pursuant to Section 4.17 that limits the Senior Subordinated Notesright of the debtor to dispose of the assets securing such Debt, (M) provisions with respect to the Senior Subordinated Notes Indenture and related guarantees;
(h) restrictions on the transfer disposition or distribution of assets subject to any Lien permitted under Section 7.3 imposed by the holder of such Lien;
(i) customary provisions or property in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
, (j) Purchase Money Indebtedness or Capitalized Lease Obligations that, in each case, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 on the property so acquired;
(k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(lN) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
, (mO) customary provisions any Debt or other contractual requirements of a Securitization Entity in joint venture agreements and connection with a Qualified Securitization Transaction; provided that such restrictions apply only to such Securitization Entity, (P) other similar agreements entered into in the ordinary course Debt of business;
(n) Indebtedness or Capital Stock of any a Restricted Subsidiary (i) that is a Guarantor that is incurred subsequent to the Closing Date or (ii) that is incurred by a Foreign Subsidiary of the Borrower subsequent to the Closing Date;
(o) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (b), (d), (e), (g) and (h) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to the Borrower in any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b), (d), (e), (g) and (h); and
(p) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred subsequent to the Closing Date date of this Indenture pursuant to Section 7.2 if the encumbrances and restrictions contained in 4.12; provided that any such agreement or instrument taken as a whole restrictions are not materially less favorable ordinary and customary with respect to the Lenders than type of Debt or preferred stock being incurred or issued (i) under the encumbrances and restrictions contained in this Agreementrelevant circumstances), together with the Security Documents as in effect on the Closing Date or (iiQ) 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 comparable financings clauses (as determined in good faith by the BorrowerA) and wherethrough (P) above, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the case good faith judgment of clause (ii)the Board of Directors of the Issuer, either (a) the Borrower determines at the time of incurrence or issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) such encumbrance or restriction applies only during the continuance of a default relating materially more restrictive with respect to such Indebtednessdividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Samples: Indenture (Globe Holdings Inc)
Payment Restrictions Affecting Restricted Subsidiaries. The Borrower will notDirectly or indirectly, and will not cause enter into or suffer to exist, or permit any of its Restricted Subsidiaries toto enter into or suffer to exist, directly any agreement or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on arrangement limiting the ability of any Restricted of its Subsidiaries (other than any Unrestricted Subsidiary of the Borrower to:
(1that is not a Wholly Owned Subsidiary and any Receivables Financing Subsidiary) to declare or pay dividends or make any other distributions on or in respect of its Capital Stock;
(2) Stock or repay or prepay any Debt owed to, make loans or advances to, or otherwise transfer assets to or invest in, the Borrower or any Subsidiary (other Restricted than any Unrestricted Subsidiary that is not a Wholly Owned Subsidiary or to pay any Indebtedness owed to the Borrower or any other Restricted Subsidiary of the Borrower; or
(3Receivables Financing Subsidiary) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary of the Borrower, except in each case for such encumbrances or restrictions existing under or by reason of:
(a) applicable law, rule, regulation or order;
(b) the Second Lien Notes Documentation;
(c) customary non assignment provisions of any contract or license or any lease governing a leasehold interest of any Restricted Subsidiary of the Borrower;
(d) any instrument governing Acquired Indebtedness or Capital Stock, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(e) agreements existing on the Closing Date to the extent and in the manner such agreements are in effect on the Closing Date;
(f) this Agreement and other Loan Documents;
(g) the Senior Subordinated Notes, the Senior Subordinated Notes Indenture and related guarantees;
(h) restrictions on the transfer of assets subject to any Lien permitted under Section 7.3 imposed by the holder of such Lien;
(i) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
(j) Purchase Money Indebtedness or Capitalized Lease Obligations that, in each case, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 on the property so acquired;
(k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(m) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(n) Indebtedness or Capital Stock of any Restricted Subsidiary (i) that is a Guarantor that is incurred subsequent to the Closing Date or (ii) that is incurred by a Foreign Subsidiary of the Borrower subsequent to the Closing Date;
(o) an agreement governing Indebtedness incurred to Refinance the Indebtedness issuedwhether through a covenant restricting dividends, assumed loans, asset transfers or incurred pursuant to an agreement referred to in clauses (binvestments, a financial covenant or otherwise), (d)except the Loan Documents, (e), (g) the Note Purchase Agreements and (h) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to the Borrower in any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b), (d), (e), (g) and (h); and
(p) any encumbrance or restriction arising pursuant to an other agreement or instrument relating to any Indebtedness governing Debt permitted to be incurred subsequent in accordance with Section 5.02(b); provided that the restrictions related to the Closing Date pursuant to Section 7.2 if the encumbrances payment of dividends and restrictions contained distributions, repayment of Debt, making of loans or other transfer of assets by Subsidiaries included in any such other agreement or instrument taken as a whole are not materially less favorable to no more restrictive than the Lenders than (i) comparable terms of the encumbrances and restrictions Loan Documents contained in this AgreementSections 5.02(e) (relating to transfer of assets by Subsidiaries), together with the Security Documents as in effect on the Closing Date or 5.02(f) (iirelating to making of loans by Subsidiaries), 5.02(g) in comparable financings (as determined in good faith relating to payment of dividends and distributions by the BorrowerSubsidiaries) and where5.02(k) (relating to repayment of Debt by Subsidiaries); and provided further that, in the case of clause any agreement (iiincluding any receivables financing agreement) to which a Receivables Financing Subsidiary may be a party or by which it may be bound in connection with a receivables financing transaction permitted by Section 5.02(b)(iii)(H), either (a) such restrictions related to the Borrower determines at the time payment of incurrence dividends and distributions, repayment of Debt, making of loans or issuance other transfers of assets included in such Indebtedness that agreement may be on such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) terms and conditions as shall be customary for such encumbrance or restriction applies only during the continuance of a default relating to such Indebtednessreceivables financing transaction.
Appears in 1 contract
Payment Restrictions Affecting Restricted Subsidiaries. The Borrower Issuer will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of the Borrower to:
to (1i) (A) pay dividends or make any other distributions on to the Issuer or in respect any of its Restricted Subsidiaries (1) on its Capital Stock;
Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (B) pay any indebtedness owed to the Issuer or any of its Restricted Subsidiaries, (ii) make loans or advances to the Borrower Issuer or any other of its Restricted Subsidiary Subsidiaries or to pay any Indebtedness owed to the Borrower or any other Restricted Subsidiary of the Borrower; or
(3iii) transfer any of its property properties or assets to the Borrower Issuer or any other of its Restricted Subsidiary of the BorrowerSubsidiaries, except in each case for such encumbrances or restrictions existing under or by reason of:
of (aA) Existing Debt, (B) the Senior Credit Facility as in effect on the date of this Indenture, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are not materially more restrictive taken as a whole with respect to such dividend and other payment restrictions than those contained in the Senior Credit Facility as in effect on the date of this Indenture (as determined by the Board of Directors of the Issuer in its reasonable and good faith judgment), (C) this Indenture and the Securities, (D) applicable law, rule, regulation or order;
(b) the Second Lien Notes Documentation;
(c) customary non assignment provisions of any contract or license or any lease governing a leasehold interest of any Restricted Subsidiary of the Borrower;
(dE) any instrument governing Acquired Indebtedness Debt or Capital StockStock of a Person acquired by the Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Debt was incurred or such encumbrance or restriction was established in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
, provided that, in the case of Debt, such Debt was permitted by the terms of this Indenture to be incurred, (eF) customary non-assignment provisions in leases and other agreements existing entered into in the ordinary course of business and consistent with past practices, restricting assignment or restricting transfers of non-cash assets, (G) Purchase Money Obligations for property acquired in the ordinary course of business and other Liens permitted by this Indenture, in each case that impose restrictions of the nature described in clause (iii) above on the Closing Date property so acquired (or subject to such Liens), (H) Debt permitted under clause (x) of Section 4.12(b), (I) Permitted Refinancing Debt, provided that the restrictions contained in the agreements governing such Permitted Refinancing Debt are not materially more restrictive taken as a whole than those contained in the agreements governing the Debt being refinanced (as determined by the Board of Directors of the Issuer in its reasonable and good faith judgment), (J) contracts for the sale of assets or Equity Interests to the extent and that any such contract imposes restrictions of the nature described in the manner such agreements are in effect clause (iii) above on the Closing Date;
property to be sold, (fK) this Agreement and other Loan Documents;
any pledge by the Issuer or a Restricted Subsidiary of the Equity Interests of an Unrestricted Subsidiary to support the Debt thereof, (gL) secured Debt otherwise permitted to be incurred pursuant to Section 4.17 that limits the Senior Subordinated Notesright of the debtor to dispose of the assets securing such Debt, (M) provisions with respect to the Senior Subordinated Notes Indenture and related guarantees;
(h) restrictions on the transfer disposition or distribution of assets subject to any Lien permitted under Section 7.3 imposed by the holder of such Lien;
(i) customary provisions or property in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
, (j) Purchase Money Indebtedness or Capitalized Lease Obligations that, in each case, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 on the property so acquired;
(k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(lN) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
, (mO) customary provisions any Debt or other contractual requirements of a Securitization Entity in joint venture agreements and connection with a Qualified Securitization Transaction; provided that such restrictions apply only to such Securitization Entity, (P) other similar agreements entered into in the ordinary course Debt of business;
(n) Indebtedness or Capital Stock of any a Restricted Subsidiary (i) that is a Guarantor that is incurred subsequent to the Closing Date or (ii) that is incurred by a Foreign Subsidiary of the Borrower subsequent to the Closing Date;
(o) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (b), (d), (e), (g) and (h) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to the Borrower in any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b), (d), (e), (g) and (h); and
(p) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred subsequent to the Closing Date date of this Indenture pursuant to Section 7.2 if the encumbrances and restrictions contained in 4.12; provided that any such agreement or instrument taken as a whole restrictions are not materially less favorable ordinary and customary with respect to the Lenders than type of Debt or preferred stock being incurred or issued (i) under the encumbrances and restrictions contained in this Agreementrelevant circumstances), together with the Security Documents as in effect on the Closing Date or (iiQ) 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 comparable financings clauses (as determined in good faith by the BorrowerA) and wherethrough (P) above, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the case good faith judgment of clause (ii)the Board of Directors of the Issuer, either (a) the Borrower determines at the time of incurrence or issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) such encumbrance or restriction applies only during the continuance of a default relating materially more restrictive with respect to such Indebtednessdividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Samples: Indenture (Globe Manufacturing Corp)
Payment Restrictions Affecting Restricted Subsidiaries. The Borrower will notDirectly or indirectly, and will not cause enter into or suffer to exist, or permit any of its Restricted Subsidiaries toto enter into or suffer to exist, directly any agreement or indirectly, create arrangement (other than this Agreement or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on other Loan Document) that:
(i) limits the ability of any of its Restricted Subsidiaries (other than any Receivables Financing Subsidiary of the Borrower to:
(1or Insurance Subsidiary) to declare or pay dividends or make any other distributions on or in respect of its Capital Stock;
(2) Stock or repay or prepay any Debt owed to, make loans or advances to, or otherwise transfer assets to or invest in, the Borrower or any other Restricted Subsidiary (other than any Receivables Financing Subsidiary or to pay any Indebtedness owed to Insurance Subsidiary) of the Borrower (whether through a covenant restricting dividends, loans, asset transfers or any other Restricted Subsidiary of the Borrower; or
(3) transfer any of its property investments, a financial covenant or assets to the Borrower or any other Restricted Subsidiary of the Borrowerotherwise), except in each case for such encumbrances or restrictions existing under or by reason of:
(a) applicable law, rule, regulation or order;
(b) the Second Lien Notes Documentation;
(c) customary non assignment provisions of any contract or license or any lease governing a leasehold interest of any Restricted Subsidiary of the Borrower;
(d) any instrument governing Acquired Indebtedness or Capital Stock, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(e) agreements existing on the Closing Date to the extent and in the manner such agreements are in effect on the Closing Date;
(f) this Agreement and other Loan Documents;
(g) the Senior Subordinated Notes, the Senior Subordinated Notes Indenture and related guarantees;
Indenture, (h) restrictions on the transfer of assets subject to any Lien Permitted Junior Refinancing Debt or Debt permitted under Section 7.3 imposed by the holder of such Lien;
(i) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
(j) Purchase Money Indebtedness or Capitalized Lease Obligations that, in each case, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 on the property so acquired;
(k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(m) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(n) Indebtedness or Capital Stock of any Restricted Subsidiary (i) that is a Guarantor that is incurred subsequent to the Closing Date or (ii) that is incurred by a Foreign Subsidiary of the Borrower subsequent to the Closing Date;
(o) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (b5.02(b)(i)(D)(ii), (d), (e), (g) and (h) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to the Borrower in any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b), (d), (e), (g) and (h); and
(p) any encumbrance or restriction arising pursuant to an other agreement or instrument relating to any Indebtedness governing Debt permitted to be incurred subsequent in accordance with Section 5.02(b); provided that the restrictions related to the Closing Date pursuant to Section 7.2 if the encumbrances payment of dividends and restrictions contained distributions, repayment of Debt, making of loans or other transfer of assets by Restricted Subsidiaries included in any such other agreement or instrument taken as a whole are not materially less favorable to no more restrictive than the Lenders than (i) comparable terms of the encumbrances and restrictions Loan Documents contained in this AgreementSections 5.02(e) (relating to transfer of assets by Restricted Subsidiaries), together with the Security Documents as in effect on the Closing Date or 5.02(f) (iirelating to making of loans by Restricted Subsidiaries), Section 5.02(g) in comparable financings (as determined in good faith relating to payment of dividends and distributions by the BorrowerRestricted Subsidiaries) and where5.02(k) (relating to repayment of Debt by Restricted Subsidiaries); and provided further that, in the case of clause any agreement (including any receivables financing agreement) to which a Receivables Financing Subsidiary may be a party or by which it may be bound in connection with a receivables financing transaction permitted by Section 5.02(b)(iii)(H), such restrictions related to the payment of dividends and distributions, repayment of Debt, making of loans or other transfers of assets included in such agreement may be on such terms and conditions as shall be customary for such receivables financing transaction; or
(ii) prohibits or limits the ability of Borrower or any of its Restricted Subsidiaries (other than any Receivables Financing Subsidiary and the Insurance Subsidiary) to create, incur, assume or suffer to exist any Lien upon any of its assets, whether now owned or hereafter acquired, to secure or guarantee the Obligations, other than (A) customary restrictions contained in the Indenture on terms that are consistent with, or not materially more restrictive than the restrictions set forth herein and (B) any negative pledge or restriction incurred or provided in favor of any holder of indebtedness permitted under Sections 5.02(b)(iii)(C), either (a5.02(b)(iii)(D), 5.02(b)(iii)(G), 5.02(b)(iii)(H) or 5.02(h) solely to the Borrower determines at extent any such negative pledge or restriction relates to the time of incurrence property financed by or issuance the subject of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) such encumbrance or restriction applies only during the continuance of a default relating to such Indebtednessindebtedness.
Appears in 1 contract
Payment Restrictions Affecting Restricted Subsidiaries. The Borrower Issuer will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of the Borrower to:
to (1i) (a) pay dividends or make any other distributions on to the Issuer or in respect any of its Restricted Subsidiaries (1) on its Capital Stock;
Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (b) pay any indebtedness owed to the Issuer or any of its Restricted Subsidiaries, (ii) make loans or advances to the Borrower Issuer or any other of its Restricted Subsidiary Subsidiaries or to pay any Indebtedness owed to the Borrower or any other Restricted Subsidiary of the Borrower; or
(3iii) transfer any of its property properties or assets to the Borrower Issuer or any other of its Restricted Subsidiary of the BorrowerSubsidiaries, except in each case for such encumbrances or restrictions existing under or by reason of:
of (a) the Senior Credit Facility as in effect as of the date of this Indenture, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are not more restrictive taken as a whole with respect to such dividend and other payment restrictions than those contained in the Senior Credit Facility as in effect on the date of this Indenture (as determined by the Board of Directors of the Issuer in its reasonable and good faith judgment), (b) this Indenture and the Securities, (c) applicable law, rule, regulation or order;
(b) the Second Lien Notes Documentation;
(c) customary non assignment provisions of any contract or license or any lease governing a leasehold interest of any Restricted Subsidiary of the Borrower;
(d) any instrument governing Acquired Indebtedness Debt or Capital StockStock of a Person acquired by the Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Debt was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the properties property or assets of the Person Person, so acquired;
, provided that, in the case of Debt, such Debt was permitted by the terms of this Indenture to be incurred, (e) agreements existing on the Closing Date to the extent and customary non-assignment provisions in the manner such agreements are in effect on the Closing Date;
(f) this Agreement leases and other Loan Documents;
(g) the Senior Subordinated Notes, the Senior Subordinated Notes Indenture and related guarantees;
(h) restrictions on the transfer of assets subject to any Lien permitted under Section 7.3 imposed by the holder of such Lien;
(i) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
(j) Purchase Money Indebtedness or Capitalized Lease Obligations that, in each case, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 on the property so acquired;
(k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(m) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
business and consistent with past practices, restricting assignment or restricting transfers of non-cash assets, (nf) Indebtedness or Capital Stock Purchase Money Obligations for property acquired in the ordinary course of any Restricted Subsidiary (i) business and other Liens permitted by this Indenture, in each case that is a Guarantor that is incurred subsequent to the Closing Date or (ii) that is incurred by a Foreign Subsidiary impose restrictions of the Borrower subsequent nature described in clause (iii) above on the property so acquired (or subject to the Closing Date;
(o) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (b), (d), (esuch Liens), (g) and Debt permitted by clause (x) of Permitted Debt, (h) above; providedPermitted Refinancing Debt, however, provided that the provisions relating to such encumbrance or restriction restrictions contained in any the agreements governing such Indebtedness Permitted Refinancing Debt are no less favorable to not more restrictive taken as a whole than those contained in the Borrower in any material respect agreements governing the Debt being refinanced (as determined by the Board of Directors of the Borrower Issuer in their its reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (bjudgment), (d)i) contracts for the sale of assets, (e)j) customary provisions in agreements with respect to Permitted Joint Ventures, or (g) and (h); and
(pk) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to Section 7.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (i) the encumbrances and restrictions contained in this Agreement, together with the Security Documents as in effect on the Closing Date or (ii) in comparable financings (as determined in good faith pledge by the Borrower) and where, in Issuer or a Restricted Subsidiary of the case Equity Interests of clause (ii), either (a) an Unrestricted Subsidiary to support the Borrower determines at the time of incurrence or issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) such encumbrance or restriction applies only during the continuance of a default relating to such IndebtednessDebt thereof.
Appears in 1 contract
Payment Restrictions Affecting Restricted Subsidiaries. The Borrower will notDirectly or indirectly, and will not cause enter into or suffer to exist, or permit any of its their Restricted Subsidiaries toto enter into or suffer to exist, directly any agreement or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on arrangement limiting the ability of any of their Restricted Subsidiaries to declare or pay dividends or other distributions in respect of its Equity Interests or repay or prepay any Debt owed to, make loans or advances to, or otherwise transfer assets to or invest in, Parent or any Restricted Subsidiary of Parent (whether through a covenant restricting dividends, loans, asset transfers or investments, a financial covenant or otherwise), except (i) the Loan Documents; (ii) any agreement or instrument evidencing Surviving Debt; (iii) any agreement or instrument in effect at the time such Subsidiary becomes a Restricted Subsidiary of the Borrower to:
(1) pay dividends or make any other distributions on the Parent, so long as such agreement or instrument was not entered into solely in respect contemplation of its Capital Stock;
(2) make loans or advances to the Borrower or any other Restricted Subsidiary or to pay any Indebtedness owed to the Borrower or any other such Person becoming a Restricted Subsidiary of the Borrower; or
(3) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary of the Borrower, except in each case for such encumbrances or restrictions existing under or by reason of:
Parent; (a) applicable law, rule, regulation or order;
(biv) the Second Lien Notes Documentation;
(c) customary non assignment provisions of any contract or license or any lease governing a leasehold interest of any Restricted Subsidiary of the Borrower;
(d) any instrument governing Acquired Indebtedness or Capital Stock, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(e) agreements existing on the Closing Date to the extent and in the manner such agreements are in effect on the Closing Date;
(f) this Agreement and other Loan Documents;
(g) the Senior Subordinated Notes, the Senior Subordinated Notes Indenture and related guarantees;
(h) restrictions on the transfer of assets subject to any Lien permitted under Section 7.3 imposed by the holder of such Lien;
(i) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
(j) Purchase Money Indebtedness or Capitalized Lease Obligations that, in each case, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 on the property so acquired;
(k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(m) customary provisions in joint venture agreements and other similar agreements entered into in connection with the ordinary course formation, ownership and governance of business;
(n) Indebtedness or Capital Stock of Meridian Speedway, as well as any Restricted Subsidiary (i) restrictions applicable to any other joint venture that is a Guarantor Subsidiary existing at the time of the acquisition thereof as a result of an Investment pursuant to Section 5.02(f), provided that is incurred subsequent the restrictions applicable to such joint venture are not made more burdensome, from the perspective of the Parent, the Borrower and their Restricted Subsidiaries, than those as in effect immediately before giving effect to the Closing Date or (ii) that is incurred by a Foreign Subsidiary consummation of the Borrower subsequent to the Closing Date;
respective Investment; (ov) an agreement governing Indebtedness incurred to Refinance the Indebtedness effecting a refinancing, replacement or substitution of Debt issued, assumed or incurred pursuant to an agreement or instrument referred to in clauses clause (b), (d), (e), (g) and (hii) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness refinancing, replacement or substitution agreement are no less favorable to the Parent, the Borrower or the Lenders in any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in the agreements or instruments referred to in such clauses (b), (d), (e), (g) and (h); and
(p) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to Section 7.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (i) the encumbrances and restrictions contained in this Agreement, together with the Security Documents as in effect on the Closing Date or (ii) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (ii); (vi) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Parent, either (a) the Borrower determines at or any of their Restricted Subsidiaries; (vii) customary provisions restricting assignment of any licensing agreement (in which the time Parent, the Borrower or any of incurrence their Restricted Subsidiaries is the licensee) or issuance other contract entered into by the Parent, the Borrower or any of their Restricted Subsidiaries in the ordinary course of business; (viii) restrictions on the transfer of any asset pending the close of the sale of such Indebtedness asset, (ix) restrictions on the transfer of any asset subject to a Lien permitted by Section 5.02(a)(iii), (iv) or (v); (x) negative pledges and restrictions on Liens in favor of any holder of Debt for Borrowed Money permitted under Section 5.02(b) but only if such negative pledge or restriction expressly permits Liens securing the Obligations under the Loan Documents on a senior basis and without a requirement that such holders of such Debt be secured by such Liens equally and ratably or on a junior basis; or (xi) encumbrances or restrictions will not adversely affect, on cash or other deposits or net worth imposed by customers under agreements entered into in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) such encumbrance or restriction applies only during the continuance ordinary course of a default relating to such Indebtednessbusiness.
Appears in 1 contract
Payment Restrictions Affecting Restricted Subsidiaries. The Borrower will notDirectly or indirectly, and will not cause enter into or suffer to exist, or permit any of its Restricted Subsidiaries toto enter into or suffer to exist, directly any agreement or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on arrangement limiting the ability of any of its Subsidiaries to declare or pay dividends or other distributions in respect of its Equity Interests or repay or prepay any Debt owed to, make loans or advances to, or otherwise transfer assets to or make Investments in, the Borrower or any Restricted Subsidiary of the Borrower to:
(1whether through a covenant restricting dividends, loans, asset transfers or investments, a financial covenant or otherwise), except (i) pay dividends the Loan Documents, (ii) any agreement or make instrument evidencing Existing Debt, (iii) any other distributions on or agreement in respect of its Capital Stock;
(2) make loans or advances to effect at the Borrower or any other Restricted Subsidiary or to pay any Indebtedness owed to the Borrower or any other Restricted Subsidiary of the Borrower; or
(3) transfer any of its property or assets to the Borrower or any other time a Person first became a Restricted Subsidiary of the Borrower, except so long as such agreement was not entered into solely in each case for contemplation of such encumbrances or restrictions existing under or by reason of:
(a) applicable law, rule, regulation or order;
(b) the Second Lien Notes Documentation;
(c) customary non assignment provisions of any contract or license or any lease governing Person becoming a leasehold interest of any Restricted Subsidiary of the Borrower;
, (div) the Support Agreement, (v) the Shy Settlement, (vi) agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (vii) leases, subleases or licenses, sublicenses or service contracts restricting the assignment thereof, (viii) any instrument governing Acquired Indebtedness or Capital Stock, which encumbrance or restriction is not applicable other contractual requirements (including pursuant to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(e) agreements existing on the Closing Date to the extent and corporate governance documents in the manner nature of a charter or by-laws) of a Finance Subsidiary arising in connection with a Permitted Receivables Financing, provided, that any such agreements are encumbrances and restrictions apply only to such Finance Subsidiary, (ix) any agreement in effect on the Closing Date;
Effective Date as any such agreement is in effect on such date, and (fx) this Agreement documentation with respect to Debt permitted pursuant to Section 7.02(b)(xx) and other Loan Documents;
(g) the Senior Subordinated Notes, the Senior Subordinated Notes Indenture and related guarantees;
(h) restrictions on the transfer of assets subject to any Lien permitted under Section 7.3 imposed by the holder of such Lien;
(ixi) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
(j) Purchase Money Indebtedness or Capitalized Lease Obligations thatpartnership agreements, in each caselimited liability company organizational governance documents, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 on the property so acquired;
(k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(m) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(n) Indebtedness business that restrict the payment of dividends from such partnership, limited liability company, joint venture or Capital Stock of any Restricted Subsidiary (i) that is a Guarantor that is incurred subsequent to the Closing Date or (ii) that is incurred by a Foreign Subsidiary of the Borrower subsequent to the Closing Date;
(o) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (b), (d), (e), (g) and (h) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to the Borrower in any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b), (d), (e), (g) and (h); and
(p) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to Section 7.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (i) the encumbrances and restrictions contained in this Agreement, together with the Security Documents as in effect on the Closing Date or (ii) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (ii), either (a) the Borrower determines at the time of incurrence or issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) such encumbrance or restriction applies only during the continuance of a default relating to such Indebtednesssimilar Person.
Appears in 1 contract
Payment Restrictions Affecting Restricted Subsidiaries. The Borrower will notEnter into or suffer to exist, and will not cause or permit any of its Restricted Subsidiaries toto enter into or suffer to exist, directly any agreement or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on arrangement limiting the ability of any of its Restricted Subsidiary of the Borrower to:
(1) Subsidiaries to declare or pay dividends or make any other distributions on or in respect of its Capital Stock;
(2) Equity Interests or repay or prepay any Debt owed to, make loans or advances to, or otherwise transfer assets to or invest in, the Borrower or any other Restricted Subsidiary or to pay any Indebtedness owed to the Borrower or any other Restricted Subsidiary of the Borrower; or
(3) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary of the Borrower, except in each case for such encumbrances or restrictions existing under or by reason of:
(a) applicable law, rule, regulation or order;
(bi) the Second Lien Notes Documentation;
Loan Documents; (cii) customary non assignment provisions of any contract agreement or license instrument evidencing Surviving Debt; (iii) any agreement or any lease governing instrument in effect at the time such Subsidiary becomes a leasehold interest of any Restricted Subsidiary of the Borrower;
(d) any , so long as such agreement or instrument governing Acquired Indebtedness or Capital Stock, which encumbrance or restriction is was not applicable to any Person, or the properties or assets entered into solely in contemplation of any Person, other than the such Person or the properties or assets becoming a Restricted Subsidiary of the Person so acquired;
Borrower; (e) agreements existing on the Closing Date to the extent and in the manner such agreements are in effect on the Closing Date;
(f) this Agreement and other Loan Documents;
(giv) the Senior Subordinated Notes, the Senior Subordinated Notes Indenture and related guarantees;
(h) restrictions on the transfer of assets subject to any Lien permitted under Section 7.3 imposed by the holder of such Lien;
(i) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
(j) Purchase Money Indebtedness or Capitalized Lease Obligations that, in each case, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 on the property so acquired;
(k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(m) customary provisions in joint venture agreements and other similar agreements entered into in connection with the ordinary course formation, ownership and governance of business;
(n) Indebtedness or Capital Stock of Meridian Speedway, as well as any Restricted Subsidiary (i) restrictions applicable to any other joint venture that is a Guarantor Subsidiary existing at the time of the acquisition thereof, provided that is incurred subsequent the restrictions applicable to such joint venture are not made more burdensome, from the Closing Date or (ii) that is incurred by a Foreign Subsidiary perspective of the Borrower subsequent and its Restricted Subsidiaries, than those as in effect immediately before giving effect to the Closing Date;
consummation of the respective investment; (ov) an agreement governing Indebtedness incurred to Refinance the Indebtedness effecting a refinancing, replacement or substitution of Debt issued, assumed or incurred pursuant to an agreement or instrument referred to in clauses clause (b), (d), (e), (g) and (hii) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness refinancing, replacement or substitution agreement are no less favorable to the Borrower or the Lenders in any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in the agreements or instruments referred to in such clauses (b), (d), (e), (g) and (h); and
(p) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to Section 7.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (i) the encumbrances and restrictions contained in this Agreement, together with the Security Documents as in effect on the Closing Date or (ii) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (ii), either ; (avi) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Borrower determines at or any of its Restricted Subsidiaries; (vii) customary provisions restricting assignment of any licensing agreement (in which the time Borrower or any of incurrence its Restricted Subsidiaries is the licensee) or issuance other contract entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business; (viii) restrictions on the transfer of any asset pending the closing of the sale of such Indebtedness that such asset; (ix) restrictions on the transfer of any asset subject to purchase money Liens or Liens arising in connection with Capitalized Lease Obligations; (x) negative pledges and restrictions on Liens in favor of any holder of Debt for Borrowed Money permitted under Section 5.02(b); or (xi) encumbrances or restrictions will not adversely affect, on cash or other deposits or net worth imposed by customers under agreements entered into in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) such encumbrance or restriction applies only during the continuance ordinary course of a default relating to such Indebtednessbusiness.
Appears in 1 contract
Payment Restrictions Affecting Restricted Subsidiaries. The ------------------------------------------------------ Borrower will not, and will not cause or permit any of its Restricted Subsidiaries to, directly create, assume or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of the Borrower to:
to (1a) pay dividends or make any other distributions on or in respect of its such Restricted Subsidiary's Capital Stock;
(2) Stock or otherwise transfer cash or assets or make loans or advances to the Borrower or any other Restricted Subsidiary Subsidiary, or to pay any Indebtedness owed owing to the Borrower or any other Restricted Subsidiary of Subsidiary, (b) make any loans or advances to the Borrower; or
Borrower or any Restricted Subsidiary, or (3c) transfer any of its property or assets cash to the Borrower or any Restricted Subsidiary, other Restricted Subsidiary of the Borrowerthan as permitted by this Agreement, except in each case for such encumbrances or restrictions existing under or by reason of:
of (ai) applicable law, rule, regulation or order;
(b) the Second Lien Notes Documentation;
(cii) customary non non-assignment provisions of any contract agreement or license or any obligation, including a lease governing a leasehold interest interest, of any Restricted the Borrower or a Subsidiary of the Borrower;
, (d) any instrument governing Acquired Indebtedness or Capital Stock, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(e) agreements existing on the Closing Date to the extent and in the manner such agreements are in effect on the Closing Date;
(fiii) this Agreement and other Loan Documents;
(g) the Senior Subordinated NotesSecurity Documents and any amendments, the Senior Subordinated Notes Indenture and related guarantees;
(h) restrictions on the transfer of assets subject to any Lien permitted under Section 7.3 imposed by the holder of such Lien;
(i) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture modifications or similar entity or the equity interests therein) entered into in the ordinary course of business;
(j) Purchase Money Indebtedness or Capitalized Lease Obligations thatrefinancing thereof, in each case, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 on the property so acquired;
(k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(m) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(n) Indebtedness or Capital Stock of any Restricted Subsidiary (i) that is a Guarantor that is incurred subsequent to the Closing Date or (ii) that is incurred by a Foreign Subsidiary of the Borrower subsequent to the Closing Date;
(o) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (b), (d), (e), (g) and (h) above; provided, however, that the provisions relating to any such amendments, modifications -------- ------- or refinancings shall not impose any greater encumbrance or restriction contained than those contemplated by this Agreement as in existence on the date of original issuance of the Term Notes, (iv) the Revolving Credit Agreement, provided, -------- however, that any such Indebtedness are no less favorable amendments to the Borrower in Revolving Credit Agreement shall not impose ------- any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such greater encumbrance or restriction contained than those contemplated by the Revolving Credit Agreement as in agreements referred to in such clauses (b)existence on the date of original issuance of the Term Notes, (d)v) the Senior Note Indenture and any amendments, (e)modifications or refinancing hereof, (g) and (h); and
(p) provided that any such amendments, modifications or refinancings shall not impose any greater encumbrance or restriction arising than those contemplated by the Senior Indenture as in existence on the date of original issuance of the Senior Notes, (vi) any Indebtedness incurred pursuant to an agreement clause ------ (o) of Section 7.2.1 and any amendments, modifications or instrument relating to any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to Section 7.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (i) the encumbrances and restrictions contained in this Agreementrefinancing thereof, together with the Security Documents as in effect on the Closing Date or (ii) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (ii), either (a) the Borrower determines at the time of incurrence or issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) such encumbrance or restriction applies only during the continuance of a default relating to such Indebtedness.--- -------------
Appears in 1 contract
Payment Restrictions Affecting Restricted Subsidiaries. The Borrower will notDirectly or indirectly, and will not cause enter into or suffer to exist, or permit any of its their Restricted Subsidiaries toto enter into or suffer to exist, directly any agreement or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on arrangement limiting the ability of any of their Restricted Subsidiaries to declare or pay dividends or other distributions in respect of its Equity Interests or repay or prepay any Debt owed to, make loans or advances to, or otherwise transfer assets to or invest in, the Parent or any Restricted Subsidiary of the Borrower to:
Parent (1whether through a covenant restricting dividends, loans, asset transfers or investments, a financial covenant or otherwise), except (i) pay dividends the Loan Documents; (ii) any agreement or make instrument evidencing Surviving Debt; (iii) any other distributions on agreement or instrument in respect of its Capital Stock;
(2) make loans or advances to effect at the Borrower or any other Restricted time such Subsidiary or to pay any Indebtedness owed to the Borrower or any other becomes a Restricted Subsidiary of the Borrower; or
(3) transfer any of its property or assets to the Borrower or any other the Parent, so long as such agreement or instrument was not entered into solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower, except in each case for such encumbrances Borrower or restrictions existing under or by reason of:
the Parent; (a) applicable law, rule, regulation or order;
(biv) the Second Lien Notes Documentation;
(c) customary non assignment provisions of any contract or license or any lease governing a leasehold interest of any Restricted Subsidiary of the Borrower;
(d) any instrument governing Acquired Indebtedness or Capital Stock, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(e) agreements existing on the Closing Date to the extent and in the manner such agreements are in effect on the Closing Date;
(f) this Agreement and other Loan Documents;
(g) the Senior Subordinated Notes, the Senior Subordinated Notes Indenture and related guarantees;
(h) restrictions on the transfer of assets subject to any Lien permitted under Section 7.3 imposed by the holder of such Lien;
(i) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
(j) Purchase Money Indebtedness or Capitalized Lease Obligations that, in each case, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 on the property so acquired;
(k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(m) customary provisions in joint venture agreements and other similar agreements entered into in connection with the ordinary course formation, ownership and governance of business;
(n) Indebtedness or Capital Stock of Meridian Speedway, as well as any Restricted Subsidiary (i) restrictions applicable to any other joint venture that is a Guarantor Subsidiary existing at the time of the acquisition thereof as a result of an Investment pursuant to Section 5.02(f), provided that is incurred subsequent the restrictions applicable to such joint venture are not made more burdensome, from the perspective of the Parent, the Borrower and their Restricted Subsidiaries, than those as in effect immediately before giving effect to the Closing Date or (ii) that is incurred by a Foreign Subsidiary consummation of the Borrower subsequent to the Closing Date;
respective Investment; (ov) an agreement governing Indebtedness incurred to Refinance the Indebtedness effecting a refinancing, replacement or substitution of Debt issued, assumed or incurred pursuant to an agreement or instrument referred to in clauses clause (b), (d), (e), (g) and (hii) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness refinancing, replacement or substitution agreement are no less favorable to the Parent, the Borrower or the Lenders in any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in the agreements or instruments referred to in such clauses (b), (d), (e), (g) and (h); and
(p) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to Section 7.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (i) the encumbrances and restrictions contained in this Agreement, together with the Security Documents as in effect on the Closing Date or (ii) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (ii); (vi) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Parent, either (a) the Borrower determines at or any of their Restricted Subsidiaries; (vii) customary provisions restricting assignment of any licensing agreement (in which the time Parent, the Borrower or any of incurrence their Restricted Subsidiaries is the licensee) or issuance other contract entered into by the Parent, the Borrower or any of their Restricted Subsidiaries in the ordinary course of business; (viii) restrictions on the transfer of any asset pending the close of the sale of such Indebtedness asset, (ix) restrictions on the transfer of any asset subject to a Lien permitted by Section 5.02(a)(iii), (iv) or (v); (x) negative pledges and restrictions on Liens in favor of any holder of Debt for Borrowed Money permitted under Section 5.02(b) but only if such negative pledge or restriction expressly permits Liens securing the Obligations under the Loan Documents on a senior basis and without a requirement that such holders of such Debt be secured by such Liens equally and ratably or on a junior basis; or (xi) encumbrances or restrictions will not adversely affect, on cash or other deposits or net worth imposed by customers under agreements entered into in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) such encumbrance or restriction applies only during the continuance ordinary course of a default relating to such Indebtednessbusiness.
Appears in 1 contract
Payment Restrictions Affecting Restricted Subsidiaries. The Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of the Borrower to:
to (1i) pay dividends or make any other distributions distribution to the Borrower or its Restricted Subsidiaries on its Equity Interests, (ii) pay any Indebtedness owed to the Borrower or in respect of its Capital Stock;
any other Restricted Subsidiary, (2iii) make loans or advances to the Borrower or any other Restricted Subsidiary or to pay any Indebtedness owed to the Borrower or any other Restricted Subsidiary of the Borrower; or
(3iv) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary of the BorrowerSubsidiary, except in each case for such encumbrances or restrictions existing under or by reason ofexcept:
(a) applicable lawconsensual encumbrances or restrictions contained in or created pursuant to the Revolving Credit Agreement, rulethe Security Documents, regulation or orderthe Intercreditor Agreement and other Existing Indebtedness;
(b) consensual encumbrances or restrictions in the Second Lien Senior Notes Documentation(if any) and the Senior Note Indenture;
(c) customary non assignment provisions any restriction, with respect to a Restricted Subsidiary of any contract or license or any lease governing the Borrower that is not a leasehold interest Subsidiary of any the Borrower on the Closing Date, in existence at the time such entity becomes a Restricted Subsidiary of the Borrower;
(d) any instrument governing Acquired Indebtedness or Capital Stock, which ; provided that such encumbrance or restriction is not created in anticipation of or in connection with such entity becoming a Subsidiary of the Borrower and is not applicable to any Person, Person or the properties or assets of any Person, Person other than the a Person or the properties or assets of the Person so acquiredthat becomes a Subsidiary;
(ed) agreements existing on the Closing Date to the extent and in the manner such agreements are in effect on the Closing Date;
(f) this Agreement and other Loan Documents;
(g) the Senior Subordinated Notes, the Senior Subordinated Notes Indenture and related guarantees;
(h) any encumbrances or restrictions on the transfer of assets subject to any Lien permitted under Section 7.3 imposed by the holder of such Lien;
(i) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
(j) Purchase Money Indebtedness or Capitalized Lease Obligations that, in each case, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 on the property so acquired;
(k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition effecting a refinancing of all or substantially all of the Capital Stock or assets of such Subsidiary;
(l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(m) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(n) Indebtedness or Capital Stock of any Restricted Subsidiary (i) that is a Guarantor that is incurred subsequent to the Closing Date or (ii) that is incurred by a Foreign Subsidiary of the Borrower subsequent to the Closing Date;
(o) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses clause (b), a) or (d), (e), (gc) and (h) above; provided, however, that the provisions relating to such encumbrance of this Section or restriction contained in any such Indebtedness are no less favorable to the Borrower in any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b), (d), (e), (g) and (h); and
(p) any encumbrance or restriction arising pursuant to an agreement or instrument relating amendment to any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to Section 7.2 if agreement creating such Indebtedness, provided that the encumbrances and restrictions contained in any such agreement refinancing or instrument amendment are not materially more restrictive taken as a whole are not materially less favorable to the Lenders than (i) the encumbrances and restrictions contained in this Agreement, together with the Security Documents as in effect on the Closing Date or (ii) in comparable financings (as determined in good faith by the chief financial officer of the Borrower) and where, than those provided for in the case of clause (ii), either (a) the Borrower determines at the time of incurrence or issuance of such Indebtedness that such encumbrances being refinanced or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) such encumbrance or restriction applies only during the continuance of a default relating to such Indebtedness.amended;
Appears in 1 contract
Payment Restrictions Affecting Restricted Subsidiaries. The Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of the Borrower to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Borrower or in respect of its Capital Stock;
any other Restricted Subsidiary, (2ii) pay any Debt owed to the Borrower or any other Restricted Subsidiary, (iii) make loans or advances to the Borrower or any other Restricted Subsidiary or to pay any Indebtedness owed to the Borrower or any other Restricted Subsidiary of the Borrower; or
(3iv) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(A) existing on the Effective Date in the First Lien Credit Agreement, this Agreement or any other agreements in effect on the Effective Date, and any extensions, refinancings, renewals or replacements of such agreements; provided that the Borrowerencumbrances and restrictions in any such extensions, except refinancings, renewals or replacements taken as a whole are no less favorable in each case for such any material respect to the Secured Parties under this Agreement than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(B) existing under or by reason of:
(a) of applicable law, ruleregulation, regulation rule or order;
(bC) existing with respect to any Person or the Second Lien Notes Documentation;
(c) customary non assignment provisions property or assets of any contract or license such Person acquired by the Borrower or any lease governing a leasehold interest Restricted Subsidiary, existing at the time of any Restricted Subsidiary of the Borrower;
(d) any instrument governing Acquired Indebtedness or Capital Stocksuch acquisition and not incurred in contemplation thereof, which encumbrance encumbrances or restriction is restrictions are not applicable to any Person, Person or the properties property or assets of any Person, Person other than the such Person or the properties property or assets of such Person so acquired and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole are no less favorable in any material respect to the Secured Parties than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(D) in the case of clause (iv) of the first paragraph of this Section 5.02(g):
(1) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,
(2) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Person so acquired;Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement or
(e3) agreements existing on the Closing Date arising or agreed to the extent and in the manner such agreements are in effect on the Closing Date;
(f) this Agreement and other Loan Documents;
(g) the Senior Subordinated Notes, the Senior Subordinated Notes Indenture and related guarantees;
(h) restrictions on the transfer of assets subject to any Lien permitted under Section 7.3 imposed by the holder of such Lien;
(i) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, detract from the value of property or assets of the Borrower or any Restricted Subsidiary in any manner material to the Borrower or any Restricted Subsidiary;
(jE) Purchase Money Indebtedness or Capitalized Lease Obligations that, in each case, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 on the property so acquired;
(k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of of, such Restricted Subsidiary;
(lF) existing in agreements governing Debt of any Restricted Subsidiary permitted to be Incurred after the date of this Agreement, provided that the terms and conditions of any such encumbrances or restrictions on cash are no more restrictive than those permitted under clause (A) above, and any extensions, refinancings, renewals or other deposits replacements of such Debt; and provided that the encumbrances or net worth imposed by customers restrictions in any such extensions, refinancings, renewals or replacements taken as a whole are no less favorable in any material respect to the Secured Parties than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(G) existing under contracts entered into purchase money obligations for property acquired in the ordinary course of business;business consistent with past practice that impose encumbrances or restrictions on the property so acquired of the nature described in clause (iv) of the first paragraph of this Section 5.02(g); and
(mH) customary provisions with respect to the distribution of assets or property in joint venture agreements and other similar agreements entered into agreements. Nothing contained in this Section 5.02(g) shall prevent the ordinary course of business;
(n) Indebtedness Borrower or Capital Stock of any Restricted Subsidiary from (i1) that is a Guarantor that is incurred subsequent creating, incurring, assuming or suffering to the Closing Date exist any Liens otherwise permitted by Section 5.02(a) or (ii2) that is incurred by a Foreign Subsidiary restricting the sale or other disposition of property or assets of the Borrower subsequent to the Closing Date;
(o) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (b), (d), (e), (g) and (h) above; provided, however, any of its Restricted Subsidiaries that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to the Borrower in any material respect as determined by the Board of Directors secure Debt of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b), (d), (e), (g) and (h); and
(p) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to Section 7.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (i) the encumbrances and restrictions contained in this Agreement, together with the Security Documents as in effect on the Closing Date or (ii) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (ii), either (a) the Borrower determines at the time of incurrence or issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) such encumbrance or restriction applies only during the continuance of a default relating to such Indebtednessits Restricted Subsidiaries.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Ntelos Holdings Corp)
Payment Restrictions Affecting Restricted Subsidiaries. The Borrower will notDirectly or indirectly, and will not cause enter into or suffer to exist, or permit any of its Restricted Subsidiaries toto enter into or suffer to exist, directly any agreement or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on arrangement limiting the ability of any of its Subsidiaries to declare or pay dividends or other distributions in respect of its Equity Interests or repay or prepay any Debt owed to, make loans or advances to, or otherwise transfer assets to or make Investments in, the Borrower or any Restricted Subsidiary of the Borrower to:
(1whether through a covenant restricting dividends, loans, asset transfers or investments, a financial covenant or otherwise), except (i) pay dividends the Loan Documents, (ii) any agreement or make instrument evidencing Existing Debt, (iii) any other distributions on or agreement in respect of its Capital Stock;
(2) make loans or advances to effect at the Borrower or any other Restricted Subsidiary or to pay any Indebtedness owed to the Borrower or any other Restricted Subsidiary of the Borrower; or
(3) transfer any of its property or assets to the Borrower or any other time a Person first became a Restricted Subsidiary of the Borrower, except so long as such agreement was not entered into solely in each case for contemplation of such encumbrances or restrictions existing under or by reason of:
(a) applicable law, rule, regulation or order;
(b) the Second Lien Notes Documentation;
(c) customary non assignment provisions of any contract or license or any lease governing Person becoming a leasehold interest of any Restricted Subsidiary of the Borrower;
, (div) the Support Agreement, (v) the Shy Settlement, (vi) agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (vii) leases, subleases or licenses, sublicenses or service contracts restricting the assignment thereof, (viii) any instrument governing Acquired Indebtedness or Capital Stock, which encumbrance or restriction is not applicable other contractual requirements (including pursuant to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(e) agreements existing on the Closing Date to the extent and corporate governance documents in the manner nature of a charter or by-laws) of a Finance Subsidiary arising in connection with a Permitted Receivables Financing, provided, that any such agreements are encumbrances and restrictions apply only to such Securitization Subsidiary, (ix) any agreement in effect on the Closing Date;
Effective Date as any such agreement is in effect on such date, and (f) this Agreement and other Loan Documents;
(g) the Senior Subordinated Notes, the Senior Subordinated Notes Indenture and related guarantees;
(h) restrictions on the transfer of assets subject to any Lien permitted under Section 7.3 imposed by the holder of such Lien;
(ix) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
(j) Purchase Money Indebtedness or Capitalized Lease Obligations thatpartnership agreements, in each caselimited liability company organizational governance documents, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 on the property so acquired;
(k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(m) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(n) Indebtedness business that restrict the payment of dividends from such partnership, limited liability company, joint venture or Capital Stock of any Restricted Subsidiary (i) that is a Guarantor that is incurred subsequent to the Closing Date or (ii) that is incurred by a Foreign Subsidiary of the Borrower subsequent to the Closing Date;
(o) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (b), (d), (e), (g) and (h) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to the Borrower in any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b), (d), (e), (g) and (h); and
(p) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to Section 7.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (i) the encumbrances and restrictions contained in this Agreement, together with the Security Documents as in effect on the Closing Date or (ii) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (ii), either (a) the Borrower determines at the time of incurrence or issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) such encumbrance or restriction applies only during the continuance of a default relating to such Indebtednesssimilar Person.
Appears in 1 contract
Payment Restrictions Affecting Restricted Subsidiaries. The Borrower will notEnter into or suffer to exist, and will not cause or permit any of its Restricted Subsidiaries toto enter into or suffer to exist, directly any agreement or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on arrangement limiting the ability of any of its Restricted Subsidiary of the Borrower to:
(1) Subsidiaries to declare or pay dividends or make any other distributions on or in respect of its Capital Stock;
(2) Equity Interests or repay or prepay any Debt owed to, make loans or advances to, or otherwise transfer assets to or invest in, the Borrower or any other Restricted Subsidiary or to pay any Indebtedness owed to the Borrower or any other Restricted Subsidiary of the Borrower; or
(3) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary of the Borrower, except in each case for such encumbrances or restrictions existing under or by reason of:
(a) applicable law, rule, regulation or order;
(bi) the Second Lien Notes Documentation;
Loan Documents; (cii) customary non assignment provisions any agreement or instrument evidencing Surviving Debt; (iii) any agreement or instrument effective as of the date hereof and listed on Schedule 5.02(l) hereto; (iv) any contract agreement or license or any lease governing instrument in effect at the time such Subsidiary becomes a leasehold interest of any Restricted Subsidiary of the Borrower;
(d) any , so long as such agreement or instrument governing Acquired Indebtedness or Capital Stock, which encumbrance or restriction is was not applicable to any Person, or the properties or assets entered into solely in contemplation of any Person, other than the such Person or the properties or assets becoming a Restricted Subsidiary of the Person so acquired;
Borrower; (e) agreements existing on the Closing Date to the extent and in the manner such agreements are in effect on the Closing Date;
(f) this Agreement and other Loan Documents;
(gv) the Senior Subordinated Notes, the Senior Subordinated Notes Indenture and related guarantees;
(h) restrictions on the transfer of assets subject to any Lien permitted under Section 7.3 imposed by the holder of such Lien;
(i) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
(j) Purchase Money Indebtedness or Capitalized Lease Obligations that, in each case, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 on the property so acquired;
(k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(m) customary provisions in joint venture agreements and other similar agreements entered into in connection with the ordinary course formation, ownership and governance of business;
(n) Indebtedness or Capital Stock of Meridian Speedway, as well as any Restricted Subsidiary (i) restrictions applicable to any other joint venture that is a Guarantor Subsidiary existing at the time of the acquisition thereof, provided that is incurred subsequent the restrictions applicable to such joint venture are not made more burdensome in any material respect, from the Closing Date or (ii) that is incurred by a Foreign Subsidiary perspective of the Borrower subsequent and its Restricted Subsidiaries, than those as in effect immediately before giving effect to the Closing Date;
consummation of the respective investment; (ovi) an agreement governing Indebtedness incurred to Refinance the Indebtedness effecting a refinancing, replacement or substitution of Debt issued, assumed or incurred pursuant to an agreement or instrument referred to in clauses clause (b), (d), (e), (g) and (hii) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness refinancing, replacement or substitution agreement are no less favorable to the Borrower or the Lenders in any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in the agreements or instruments referred to in such clauses (b), (d), (e), (g) and (h); and
(p) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to Section 7.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (i) the encumbrances and restrictions contained in this Agreement, together with the Security Documents as in effect on the Closing Date or (ii) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (ii), either ; (avii) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Borrower determines at or any of its Restricted Subsidiaries; (viii) customary provisions restricting assignment of any licensing agreement (in which the time Borrower or any of incurrence its Restricted Subsidiaries is the licensee) or issuance other contract entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business; (ix) restrictions on the transfer of any asset pending the closing of the sale of such Indebtedness that such asset; (x) restrictions on the transfer of any asset subject to purchase money Liens or Liens arising in connection with Capitalized Lease Obligations; (xi) negative pledges and restrictions on Liens in favor of any holder of Debt for Borrowed Money permitted under Section 5.02(b); or (xii) encumbrances or restrictions will not adversely affect, on cash or other deposits or net worth imposed by customers under agreements entered into in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) such encumbrance or restriction applies only during the continuance ordinary course of a default relating to such Indebtednessbusiness.
Appears in 1 contract
Payment Restrictions Affecting Restricted Subsidiaries. The Borrower will notDirectly or indirectly, and will not cause enter into or suffer to exist, or permit any of its Restricted Subsidiaries toto enter into or suffer to exist, directly any agreement or indirectlyarrangement (other than a Loan Document or, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on in the case of a Project Subsidiary, a document evidencing Project Finance Indebtedness permitted under this Agreement) limiting the ability of any Restricted of its Subsidiaries to declare or pay dividends or other distributions in respect of such Subsidiary’s Equity Interests or repay or prepay any Debt owed to, make loans or advances to, or otherwise transfer assets to or invest in, the Borrower or any wholly owned Subsidiary of the Borrower to:
(1other than a Project Subsidiary) pay dividends (whether through a covenant restricting dividends, loans, asset transfers or make any other distributions on investments, a financial covenant or in respect of its Capital Stock;
otherwise); provided, that this Section 6.09 shall not apply to (2a) make loans or advances to the Borrower or any other Restricted Subsidiary or to pay any Indebtedness owed to the Borrower or any other Restricted Subsidiary of the Borrower; or
restrictions imposed by applicable law, (3b) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary of the Borrower, except in each case for such contractual encumbrances or restrictions existing under or by reason of:
(a) applicable law, rule, regulation or order;
(b) the Second Lien Notes Documentation;
(c) customary non assignment provisions of any contract or license or any lease governing a leasehold interest of any Restricted Subsidiary of the Borrower;
(d) any instrument governing Acquired Indebtedness or Capital Stock, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(e) agreements existing on the Closing Date to the extent and in the manner such agreements are in effect on the Closing Date;
Effective Date under (fx) this Agreement and other Loan Documents;
(g) the Senior Subordinated Notes, the Senior Subordinated Notes Indenture and related guarantees;
(h) restrictions any agreement existing on the transfer of assets subject Effective Date listed on Schedule 6.9 or (y) any agreements related to any Lien permitted under Section 7.3 imposed by renewal, extension or refinancing of any such agreement that does not expand the holder scope of any such Lien;
encumbrance or restriction, (ic) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
(j) Purchase Money Indebtedness or Capitalized Lease Obligations that, in each case, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 any restriction on the property so acquired;
(k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary imposed pursuant to an agreement that has been entered into for the sale or disposition of all assets of a Subsidiary pending the closing of such sale or substantially all disposition and relating to such assets only, (d) provisions protecting the rights of minority shareholders in respect of non-dilution upon issuance of additional shares and pro rata treatment in respect dividends and distributions, or restrictions that limit the rights of the Capital Stock minority shareholders to no greater rights in respect thereof, (e) any restrictions imposed by any agreement relating to secured Debt permitted by this Agreement to the extent that such restrictions apply only to the property or assets of securing such Subsidiary;
Debt, (l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(mf) customary provisions contained in joint venture agreements leases or licenses of intellectual property and other similar agreements entered into in the ordinary course of business;
(n) Indebtedness or Capital Stock of any Restricted Subsidiary (i) that is a Guarantor that is incurred subsequent business relating to the Closing Date or (ii) that is incurred by a Foreign Subsidiary transfer of the Borrower subsequent to the Closing Date;
(o) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (b), (d), (e)such intellectual property, (g) customary provisions restricting subletting or assignment of any lease governing a leasehold interest, and (h) above; provided, however, that the customary provisions relating to such encumbrance or restriction contained in restricting assignment of any such Indebtedness are no less favorable to the Borrower in any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b), (d), (e), (g) and (h); and
(p) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to Section 7.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (i) the encumbrances and restrictions contained in this Agreement, together with the Security Documents as in effect on the Closing Date or (ii) in comparable financings (as determined in good faith by the Borrower) and where, entered into in the case ordinary course of clause (ii), either (a) the Borrower determines at the time of incurrence or issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) such encumbrance or restriction applies only during the continuance of a default relating to such Indebtednessbusiness.
Appears in 1 contract
Samples: Common Agreement (Digicel Group LTD)
Payment Restrictions Affecting Restricted Subsidiaries. The Borrower will notDirectly or indirectly, and will not cause enter into or suffer to exist, or permit any of its Restricted Subsidiaries toto enter into or suffer to exist, directly any agreement or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on arrangement limiting the ability of any of its Restricted Subsidiary of the Borrower to:
(1) Subsidiaries to declare or pay dividends or make any other distributions on or in respect of its Capital Stock;
(2) Stock or repay or prepay any Debt owed to, make loans or advances to, or otherwise transfer assets to or invest in, the Borrower or any Restricted Subsidiary (whether through a covenant restricting dividends, loans, asset transfers or investments, a financial covenant or otherwise), except (i) the Loan Documents; (ii) those that exist on the Closing Date, (iii) any agreement in effect at the time such Restricted Subsidiary becomes a Restricted Subsidiary, so long as such agreement was not entered into solely in contemplation of such Person becoming a Restricted Subsidiary; (iv) restrictions contained in any instrument or agreement evidencing Debt incurred pursuant to Section 7.2(e), or (f); provided that such restrictions relate only to the transfer of the property financed with such Debt; (v) in connection with and pursuant to any extension, renewal or Permitted Refinancing, replacements of restrictions that are not more restrictive than those being replaced and do not apply to any other Person or assets than those that would have been covered by the restrictions in the Debt so refinanced; (vi) restrictions contained in any Permitted Receivables Document with respect to any Special Purpose Receivables Subsidiary; (vii) solely with respect to Restricted Subsidiaries that are not Guarantors restrictions under the Constitutive Documents governing such Subsidiary: (A) with respect to existing Restricted Subsidiaries, those existing on the Closing Date; and (B) with respect to Restricted Subsidiaries created or acquired after the Closing Date, those: (1) prohibiting such Restricted Subsidiary from guaranteeing Debt of the Borrower or another Restricted Subsidiary; (2) restricting dividend payments and other distributions solely to permit pro rata dividends and other distributions in respect of any Capital Stock of such Restricted Subsidiary; (3) limiting transactions with the Borrower or another Restricted Subsidiary to those with terms that are fair and reasonable to such Restricted Subsidiary and no less favorable to such Restricted Subsidiary than could have been obtained in an arm’s length transaction with an unrelated third party; and (4) limiting such Restricted Subsidiary’s ability to transfer assets or incur Debt without the consent of the holders of the Capital Stock of such Restricted Subsidiary; provided that all restrictions permitted by this clause (vii) shall no longer be permitted in the event any such Restricted Subsidiary becomes a Guarantor; (viii) restrictions contained in Debt incurred pursuant to Section 7.2(l) with respect to the borrowers thereunder; (ix) encumbrances or restrictions (A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract entered into in the ordinary course of business, or the assignment or transfer of any lease, license or contract entered into in the ordinary course of business, (B) arising by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower or any Restricted Subsidiary, (C) imposed by any instrument or agreement governing Debt entered into on or after the Closing Date and permitted under Section 7.2(h), (m), (p), (r), (t) or (v) that are, taken as a whole, in the good faith judgment of the Borrower, no more restrictive with respect to the Borrower or any other Restricted Subsidiary or to pay than customary market terms for Debt of such type (and, in any Indebtedness owed to event, are no more restrictive than the restrictions contained in this Agreement, taken as a whole), so long as the Borrower shall have determined in good faith that such restrictions will not affect its obligation or ability to make any other Restricted Subsidiary payments required hereunder and (D) pursuant to any Requirement of the Borrower; or
Law, (3x) transfer any of its property or assets to the Borrower or any other Restricted Subsidiary of the Borrower, except in each case for such encumbrances or restrictions existing under or by reason of:
(a) applicable law, rule, regulation or order;
(b) the Second Lien Notes Documentation;
(c) customary non assignment provisions of any contract or license or any lease governing a leasehold interest of any Restricted Subsidiary of the Borrower;
(d) any instrument governing Acquired Indebtedness or Capital Stock, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(e) agreements existing on the Closing Date to the extent and in the manner such agreements that are in effect on the Closing Date;
(f) this Agreement and other Loan Documents;
(g) the Senior Subordinated Notes, the Senior Subordinated Notes Indenture and related guarantees;
(h) restrictions on the transfer of assets subject to any Lien permitted under Section 7.3 imposed by the holder of such Lien;
(i) customary provisions in joint venture agreements and other similar agreements (in each case relating applicable to joint ventures permitted under Section 7.6 and applicable solely to the respective such joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
, (jxi) Purchase Money Indebtedness encumbrances or Capitalized Lease Obligations thatrestrictions that are contained in any employment, in each case, impose restrictions of the nature discussed in clause (3) above in the first paragraph of this Section 7.7 on the property so acquired;
(k) contracts for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an compensation or separation agreement that has been or arrangement entered into for by the sale Borrower or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into any Restricted Subsidiary in the ordinary course of business;
(m) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(n) Indebtedness or Capital Stock of any Restricted Subsidiary (i) that is a Guarantor that is incurred subsequent to the Closing Date or (ii) that is incurred by a Foreign Subsidiary of the Borrower subsequent to the Closing Date;
(o) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (b), (d), (e), (g) business and (h) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to the Borrower in any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b), (d), (e), (g) and (h); and
(pxii) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to Section 7.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (i) the encumbrances and restrictions contained in this Agreement, together with the Security Documents as in effect on the Closing Date or (ii) in comparable financings (as determined in good faith by the Borrower) and where, in the case of clause (ii), either (a) the Borrower determines at the time of incurrence or issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the notes or (b) such encumbrance or restriction applies only during the continuance of a default relating to such IndebtednessCaptive Insurance Subsidiary.
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