Restrictions on Distributions from Restricted Subsidiaries. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to: (1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness owed to the Borrower or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness); (2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or (3) sell, lease or transfer any of its property or assets to the Borrower or a Restricted Subsidiary. The foregoing restrictions of this Section 8.2.15 [Restrictions on Distributions from Restricted Subsidiaries] will not apply to encumbrances or restrictions existing under or by reason of: (a) any encumbrance or restriction in any agreement in effect on the Closing Date and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.15; (b) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or became a Restricted Subsidiary (other than Indebtedness incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date; (c) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred pursuant to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Lenders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Borrower; (i) customary non-assignment provisions in any contract, license, lease, easement or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, lessors or grantors under contracts, leases or other agreements, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business; (e) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages; (f) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition; (g) [reserved]; (h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens; (i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements; (j) encumbrances or restrictions applicable only to a Foreign Subsidiary; (k) [reserved]; (l) Swap Agreements permitted under Section 8.2.12 [Swaps]; (m) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and (n) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (a) through (m) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Borrower.
Appears in 4 contracts
Samples: Revolving Credit Facility (CNX Resources Corp), Revolving Credit Facility (CNX Resources Corp), Credit Agreement (CNX Midstream Partners LP)
Restrictions on Distributions from Restricted Subsidiaries. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness owed to the Borrower or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Borrower or a Restricted Subsidiary. The foregoing restrictions of this Section 8.2.15 8.2.14 [Restrictions on Distributions from Restricted Subsidiaries] will not apply to encumbrances or restrictions existing under or by reason of:
(a) any encumbrance or restriction in any agreement in effect on the Closing Date and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.158.2.14;
(b) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or became a Restricted Subsidiary (other than Indebtedness incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(c) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred pursuant to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Lenders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement lease or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, customers or lessors under contracts or grantors under contracts, leases or other agreementsleases, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(e) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(f) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(g) [reserved];
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved];
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(ml) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and
(nm) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (a) through (ml) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Borrower.
Appears in 4 contracts
Samples: Credit Agreement (CONSOL Coal Resources LP), Credit Agreement (CONSOL Energy Inc.), Credit Agreement (CONSOL Coal Resources LP)
Restrictions on Distributions from Restricted Subsidiaries. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness owed to the Borrower or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Borrower or a Restricted Subsidiary. The foregoing restrictions of this Section 8.2.15 8.2.14 [Restrictions on Distributions from Restricted Subsidiaries] will not apply to encumbrances or restrictions existing under or by reason of:
(a) any encumbrance or restriction in any agreement in effect on the Closing Date and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.158.2.14;
(b) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or became a Restricted Subsidiary (other than Indebtedness incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(c) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred pursuant to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Lenders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement lease or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, customers or lessors under contracts or grantors under contracts, leases or other agreementsleases, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(e) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(f) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(g) [reserved]any encumbrance or restriction in any agreement or instrument in connection with a Qualified Receivables Transaction customary for transactions of such type applicable to the Qualified Receivables Assets or the applicable Receivables Subsidiary;
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved];
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(ml) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and
(nm) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (a) through (ml) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Borrower.
Appears in 3 contracts
Samples: Credit Agreement (CONSOL Energy Inc.), Credit Agreement (CONSOL Energy Inc.), Credit Agreement (CONSOL Energy Inc.)
Restrictions on Distributions from Restricted Subsidiaries. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness owed to the Borrower or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Borrower or a Restricted Subsidiary. The foregoing restrictions of this Section 8.2.15 [Restrictions on Distributions from Restricted Subsidiaries] will not apply to encumbrances or restrictions existing under or by reason of:
(a) any encumbrance or restriction in any agreement in effect on the Closing Date and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.15;
(b) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or became a Restricted Subsidiary (other than Indebtedness incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(c) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred pursuant to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Lenders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement lease or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, customers or lessors under contracts or grantors under contracts, leases or other agreementsleases, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(e) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(f) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(g) [reserved];
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved]customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(m) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and
(n) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (a) through (m) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Borrower.
Appears in 3 contracts
Samples: Credit Agreement (CNX Resources Corp), Credit Agreement (CNX Resources Corp), Revolving Credit Facility (CNX Resources Corp)
Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall not, and shall Company will not cause or permit any Restricted Subsidiary to, (other than the Issuer or any Intermediate Guarantor) to create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary (other than the Issuer or any Intermediate Guarantor) to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of which it is a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness)Subsidiary;
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed of which it is a restriction on the ability to make loans or advances)Subsidiary; or
(3) sell, lease or transfer any of its property Property or assets to the Borrower Company or any Restricted Subsidiary of which it is a Restricted Subsidiary. .
(b) The foregoing restrictions provisions of this Section 8.2.15 [Restrictions on Distributions from Restricted Subsidiaries] 4.08(a) will not apply to encumbrances or restrictions existing under or by reason ofprohibit:
(aA) any encumbrance or restriction in any pursuant to (i) applicable law, rule, regulation, order or governmental license, permit or concession or (ii) an agreement in effect on the Closing Date (including this Indenture, the Existing Credit Facility, the Intercreditor Deed and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.15Group Intercreditor Deed and the indentures governing the Existing Notes);
(bB) in respect of a Restricted Subsidiary acquired by the Company, the Issuer or any Restricted Subsidiary after the Closing Date, any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or arising prior to the date on which such Restricted Subsidiary was acquired by the Borrower Company or became a any Restricted Subsidiary (other than an encumbrance relating to Indebtedness incurred Incurred as consideration infor, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummateto, consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the BorrowerCompany or any Restricted Subsidiary) and outstanding on such date;
(cC) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred Incurred pursuant to an agreement referred to in clause (aA) or (bB) of this paragraph Section 4.08(b) or this clause (cC) or contained in any amendment or modification to an agreement referred to in clause (aA) or (bB) of this paragraph Section 4.08(b) or this clause (cC); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary restrictions, taken as a whole, contained in any such refinancing Refinancing agreement or amendment or modification are no less favorable in any material respect to the Lenders Holders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, lessors or grantors under contracts, leases or other agreements, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(eD) in the case of clause Section 4.08(a)(3), any encumbrance or restriction
(3i) that restricts in a customary manner the subletting, assignment or transfer of any Property or asset that is subject to a lease, license or similar contract,
(ii) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary so long as such restriction relates solely to the Property so acquired (other than any encumbrance or restriction created as consideration for, in contemplation of, in connection with or pursuant to the provision of, all or any portion of the preceding paragraph, funds or credit support utilized to consummate the transaction or series of related transactions pursuant to which such Property was otherwise acquired by the Company or any Restricted Subsidiary),
(iii) under agreements relating to Purchase Money Indebtedness or Capitalized Lease Obligations Incurred that impose customary restrictions contained in Capital on the Property subject to such Purchase Money Indebtedness or Capitalized Lease Obligations,
(iv) relating to Indebtedness that is permitted to be Incurred and secured without also securing the Notes or the applicable Note Guarantee pursuant to Section 4.09 and Section 4.12 that limit the right of the debtor to dispose of the Property securing such Indebtedness, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict or
(v) customarily imposed on the transfer of copyrighted or patented materials or other intellectual property and customer provisions in agreements that restrict the property subject to assignment of such Capital Lease Obligations, purchase money obligations, security agreements or mortgagesany rights thereunder;
(fE) any encumbrance created in connection with a Qualified Receivables Transaction permitted under Section 4.09;
(F) any customary encumbrance or restriction imposed with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(gG) [reserved]any customary encumbrance or restriction on cash or other deposits or net worth imposed on customers under contracts entered into in the ordinary course of business;
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved];
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(mH) any encumbrance or restriction with respect pursuant to an Unrestricted agreement governing (i) any Bank Indebtedness of the Company or a Restricted Subsidiary permitted to be Incurred subsequent to the Closing Date pursuant to clauses (a), (b)(1), (b)(4) or (b)(16) of Section 4.09, or (ii) any Indebtedness permitted to be Incurred pursuant to clause (a) of Section 4.09 if the encumbrances and restrictions contained in any such agreement, taken as a whole, do not materially prejudice the ability of the Issuer to make payments on the Notes;
(I) encumbrances or restrictions existing under or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not provisions in asset sale agreements entered into in anticipation the ordinary course of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiarybusiness; and
(nJ) any encumbrances or restrictions imposed existing under or by reason of provisions in joint venture arrangements and other similar arrangements or arrangements with minority interests in any amendments of the contracts, instruments or obligations referred to in clauses (a) through (m) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the BorrowerRestricted Subsidiary.
Appears in 2 contracts
Samples: Indenture (Virgin Media Inc.), Indenture (Virgin Media Inc.)
Restrictions on Distributions from Restricted Subsidiaries. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness owed to the Borrower or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Borrower or a Restricted Subsidiary. The foregoing restrictions of this Section 8.2.15 8.2.14 [Restrictions on Distributions from Restricted Subsidiaries] will not apply to encumbrances or restrictions existing under or by reason of:
(a) any encumbrance or restriction in any agreement in effect on the Closing Date and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.158.2.14;
(b) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or became a Restricted Subsidiary (other than Indebtedness incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(c) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred pursuant to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Lenders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement lease or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, customers or lessors under contracts or grantors under contracts, leases or other agreementsleases, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(e) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(f) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(g) [reserved]any encumbrance or restriction in any agreement or instrument in connection with a Qualified Receivables Transaction;
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved]agreements governing Hedging Contracts, Interest Rate Agreements and Currency Agreements incurred not for speculative purposes;
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(m) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and
(nm) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (a) through (m) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Borrower.
Appears in 2 contracts
Samples: Revolving Credit Facility (CNX Coal Resources LP), Revolving Credit Facility (CNX Coal Resources LP)
Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall not, and shall Company will not cause or permit any Restricted Subsidiary to, (other than the Issuer and the Affiliate Guarantors) to create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary (other than the Issuer and the Affiliate Guarantors) to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of which it is a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness)Subsidiary;
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed of which it is a restriction on the ability to make loans or advances)Subsidiary; or
(3) sell, lease or transfer any of its property Property or assets to the Borrower Company or any Restricted Subsidiary of which it is a Restricted Subsidiary. .
(b) The foregoing restrictions provisions of this Section 8.2.15 [Restrictions on Distributions from Restricted Subsidiaries] 4.08(a) will not apply to encumbrances or restrictions existing under or by reason ofprohibit:
(aA) any encumbrance or restriction in any pursuant to (i) applicable law, rule, regulation, order or governmental license, permit or concession or (ii) an agreement in effect on the Closing Date (including this Indenture, the Subsidiary Guarantees, the Existing Credit Facility, the Intercreditor Deeds and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.15indentures governing the Existing Notes);
(bB) in respect of a Restricted Subsidiary acquired by the Company, the Issuer or any Restricted Subsidiary after the Closing Date, any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or arising prior to the date on which such Restricted Subsidiary was acquired by the Borrower Company or became a any Restricted Subsidiary (other than an encumbrance relating to Indebtedness incurred Incurred as consideration infor, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummateto, consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the BorrowerCompany or any Restricted Subsidiary) and outstanding on such date;
(cC) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred Incurred pursuant to an agreement referred to in clause (aA) or (bB) of this paragraph Section 4.08(b) or this clause (cC) or contained in any amendment or modification to an agreement referred to in clause (aA) or (bB) of this paragraph Section 4.08(b) or this clause (cC); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary restrictions, taken as a whole, contained in any such refinancing Refinancing agreement or amendment or modification are no less favorable in any material respect to the Lenders Holders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, lessors or grantors under contracts, leases or other agreements, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(eD) in the case of clause Section 4.08(a)(3), any encumbrance or restriction
(3i) that restricts in a customary manner the subletting, assignment or transfer of any Property or asset that is subject to a lease, license or similar contract,
(ii) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary so long as such restriction relates solely to the Property so acquired (other than any encumbrance or restriction created as consideration for, in contemplation of, in connection with or pursuant to the provision of, all or any portion of the preceding paragraph, funds or credit support utilized to consummate the transaction or series of related transactions pursuant to which such Property was otherwise acquired by the Company or any Restricted Subsidiary),
(iii) under agreements relating to Purchase Money Indebtedness or Capitalized Lease Obligations Incurred that impose customary restrictions contained in Capital on the Property subject to such Purchase Money Indebtedness or Capitalized Lease Obligations,
(iv) relating to Indebtedness that is permitted to be Incurred and secured without also securing the Notes or the applicable Note Guarantee pursuant to Section 4.09, purchase money obligationsSection 4.12 and Section 4.19 that limit the right of the debtor to dispose of the Property securing such Indebtedness, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict or
(v) customarily imposed on the transfer of copyrighted or patented materials or other intellectual property and customer provisions in agreements that restrict the property subject to assignment of such Capital Lease Obligations, purchase money obligations, security agreements or mortgagesany rights thereunder;
(fE) any encumbrance created in connection with a Qualified Receivables Transaction permitted under Section 4.09;
(F) any customary encumbrance or restriction imposed with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(gG) [reserved]any customary encumbrance or restriction on cash or other deposits or net worth imposed on customers under contracts entered into in the ordinary course of business;
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved];
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(mH) any encumbrance or restriction with respect pursuant to an Unrestricted agreement governing (i) any Bank Indebtedness or other Pari Passu Lien Obligations of the Company or a Restricted Subsidiary permitted to be Incurred subsequent to the Closing Date pursuant to clauses (a), (b)(1), (b)(4) or (b)(16) of Section 4.09, or (ii) any Indebtedness permitted to be Incurred pursuant to clause (a) of Section 4.09 if the encumbrances and restrictions contained in any such agreement, taken as a whole, do not materially prejudice the ability of the Issuer to make payments on the Notes;
(I) encumbrances or restrictions existing under or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not provisions in asset sale agreements entered into in anticipation the ordinary course of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiarybusiness; and
(nJ) any encumbrances or restrictions imposed existing under or by reason of provisions in joint venture arrangements and other similar arrangements or arrangements with minority interests in any amendments of the contracts, instruments or obligations referred to in clauses (a) through (m) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the BorrowerRestricted Subsidiary.
Appears in 2 contracts
Samples: Indenture (Virgin Media Inc.), Indenture (Virgin Media Inc.)
Restrictions on Distributions from Restricted Subsidiaries. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness owed to the Borrower or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Borrower or a Restricted Subsidiary. The foregoing restrictions of this Section 8.2.15 [Restrictions on Distributions from Restricted Subsidiaries] will not apply to encumbrances or restrictions existing under or by reason of:
(a) any encumbrance or restriction in any agreement in effect on the Closing Date and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.15;
(b) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or became a Restricted Subsidiary (other than Indebtedness incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(c) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred pursuant to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Lenders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement lease or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, customers or lessors under contracts or grantors under contracts, leases or other agreementsleases, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(e) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(f) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(g) [reserved]any encumbrance or restriction in any agreement or instrument in the Existing Receivables Financing and in connection with a Qualified Receivables Transaction;
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved]customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(l) Swap agreements governing Hedging Contracts, Interest Rate Agreements permitted under Section 8.2.12 [Swaps]and Currency Agreements incurred not for speculative purposes;
(m) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary;
(n) the requirement that any distribution in a Separation Transaction be pro rata among the shareholders of CEI; and
(no) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (a) through (mn) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (CNX Resources Corp), Credit Agreement (CONSOL Energy Inc)
Restrictions on Distributions from Restricted Subsidiaries. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness owed to the Borrower or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Borrower or a Restricted Subsidiary. The foregoing restrictions of this Section 8.2.15 [Restrictions on Distributions from Restricted Subsidiaries] will not apply to encumbrances or restrictions existing under or by reason of:
(a) any encumbrance or restriction in any agreement in effect on the Closing Date and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.15;
(b) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or became a Restricted Subsidiary (other than Indebtedness incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(c) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred pursuant to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Lenders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement lease or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, customers or lessors under contracts or grantors under contracts, leases or other agreementsleases, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(e) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(f) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(g) [reserved]any encumbrance or restriction in any agreement or instrument in the Existing Receivables Financing and in connection with a Qualified Receivables Transaction;
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved]customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(l) Swap agreements governing Hedging Contracts, Interest Rate Agreements permitted under Section 8.2.12 [Swaps]and Currency Agreements incurred not for speculative purposes;
(m) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary;
(n) the requirement that any distribution in the Separation Transaction be pro rata among the shareholders of CEI; and
(no) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (a) through (mn) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Borrower.
Appears in 1 contract
Restrictions on Distributions from Restricted Subsidiaries. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness owed to the Borrower or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Borrower or a Restricted Subsidiary. The foregoing restrictions of this Section 8.2.15 [Restrictions on Distributions from Restricted Subsidiaries] will not apply to encumbrances or restrictions existing under or by reason of:
(a) any encumbrance or restriction in any agreement in effect on the Closing Date and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.15;
(b) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or became a Restricted Subsidiary (other than Indebtedness incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(c) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred pursuant to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Lenders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, lessors or grantors under contracts, leases or other agreements, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(e) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(f) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(g) [reserved];
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved]customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(m) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and
(n) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (a) through (m) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Borrower.
Appears in 1 contract
Restrictions on Distributions from Restricted Subsidiaries. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, create (a) Create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness)Subsidiary;
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Borrower or a any Restricted Subsidiary. ; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to Borrower or any Restricted Subsidiary to other Indebtedness Incurred by Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The foregoing restrictions provisions of this Section 8.2.15 [Restrictions on Distributions from Restricted Subsidiaries] the preceding paragraph will not apply to encumbrances or restrictions existing under or by reason ofprohibit:
(a1) any encumbrance or restriction pursuant to this Agreement and the other Loan Documents or any other agreement or instrument, in any agreement each case, in effect at or entered into on the Closing Date and (to the extent not otherwise permitted by this Section 8.2.15) set forth listed on Schedule 8.2.156.04(b)(1);
(b2) any encumbrance or restriction with respect pursuant to a Restricted Subsidiary the Indenture, the Senior Notes and the Note Guarantees (or any agreement relating to any refinancing or replacement of Indebtedness outstanding under the Indenture that is permitted hereunder);
(3) any encumbrance or restriction pursuant to an agreement or instrument of a person or relating to any Capital Stock or Indebtedness incurred by such Restricted Subsidiary of a person, entered into on or prior to before the date on which such Restricted Subsidiary person was acquired by the or merged, consolidated or otherwise combined with or into Borrower or became any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by Borrower or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness incurred Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary person became a Restricted Subsidiary or was acquired by the BorrowerBorrower or was merged, consolidated or otherwise combined with or into Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date;
(c4) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement or securing Indebtedness of Borrower or a Restricted Subsidiary permitted under this Agreement to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of Borrower or any Restricted Subsidiary;
(5) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired;
(6) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a person of all or substantially all the Capital Stock or assets of Borrower or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(7) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments;
(8) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(9) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(10) any encumbrance or restriction pursuant to Hedging Obligations;
(11) other Indebtedness, Disqualified Capital Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued subsequent to Closing Date pursuant to Section 6.01 that impose encumbrances or restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(12) 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 6.01 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than (i) the encumbrances and restrictions contained in this Agreement, together with the security documents associated therewith as in effect on the Closing Date or (ii) in comparable financings (as determined in good faith by Borrower) and where, in the case of clause (ii), either (a) Borrower determines at the time of issuance of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, Borrower’s ability to make principal or interest payments on the Obligations or (b) such encumbrance or restriction applies only during the continuance of a default relating to such Indebtedness;
(13) any encumbrance or restriction existing by reason of any lien permitted under Section 6.03 or
(14) any encumbrance or restriction pursuant to an agreement or instrument effecting a Refinancing refinancing of Indebtedness incurred Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (13) of this paragraph (b) or this clause (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clause clauses (a1) or to (b13) of this paragraph or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c14); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in the Initial Agreement or Initial Agreements to which such agreementsrefinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, lessors or grantors under contracts, leases or other agreements, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(e) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(f) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(g) [reserved];
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved];
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(m) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and
(n) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (a) through (m) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Borrower.
Appears in 1 contract
Restrictions on Distributions from Restricted Subsidiaries. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness owed to the Borrower or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Borrower or a Restricted Subsidiary. The foregoing restrictions of this Section 8.2.15 [Restrictions on Distributions from Restricted Subsidiaries] will not apply to encumbrances or restrictions existing under or by reason of:
(a) any encumbrance or restriction in any agreement in effect on the Closing Date and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.15;
(b) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or became a Restricted Subsidiary (other than Indebtedness incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(c) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred pursuant to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Lenders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, lessors or grantors under contracts, leases or other agreements, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(e) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(f) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(g) [reserved];
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved]customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(m) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and
(n) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (a) through (m) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Borrower8.
Appears in 1 contract
Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall not, and shall Company will not cause or permit any Restricted Subsidiary to, (other than the Issuer or any Intermediate Guarantor) to create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary (other than the Issuer or any Intermediate Guarantor) to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of which it is a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness)Subsidiary;
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed of which it is a restriction on the ability to make loans or advances)Subsidiary; or
(3) sell, lease or transfer any of its property Property or assets to the Borrower Company or any Restricted Subsidiary of which it is a Restricted Subsidiary. .
(b) The foregoing restrictions provisions of this Section 8.2.15 [Restrictions on Distributions from Restricted Subsidiaries] 4.08(a) will not apply to encumbrances or restrictions existing under or by reason ofprohibit:
(aA) any encumbrance or restriction in any pursuant to (i) applicable law, rule, regulation, order or governmental license, permit or concession or (ii) an agreement in effect on the Closing Date (including this Indenture, the New Credit Facility, the Bridge Facility and (to any exchange notes issued in relation thereto, the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.15Intercreditor Deed and the Group Intercreditor Deed and the indenture governing the Existing Notes);
(bB) in respect of a Restricted Subsidiary acquired by the Company, the Issuer or any Restricted Subsidiary after the Closing Date, any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or arising prior to the date on which such Restricted Subsidiary was acquired by the Borrower Company or became a any Restricted Subsidiary (other than an encumbrance relating to Indebtedness incurred Incurred as consideration infor, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummateto, consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the BorrowerCompany or any Restricted Subsidiary) and outstanding on such date;
(cC) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred Incurred pursuant to an agreement referred to in clause (aA) or (bB) of this paragraph Section 4.08(b) or this clause (cC) or contained in any amendment or modification to an agreement referred to in clause (aA) or (bB) of this paragraph Section 4.08(b) or this clause (cC); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary restrictions, taken as a whole, contained in any such refinancing Refinancing agreement or amendment or modification are no less favorable in any material respect to the Lenders Holders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, lessors or grantors under contracts, leases or other agreements, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(eD) in the case of clause Section 4.08(a)(3), any encumbrance or restriction
(3i) that restricts in a customary manner the subletting, assignment or transfer of any Property or asset that is subject to a lease, license or similar contract,
(ii) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary so long as such restriction relates solely to the Property so acquired (other than any encumbrance or restriction created as consideration for, in contemplation of, in connection with or pursuant to the provision of, all or any portion of the preceding paragraph, funds or credit support utilized to consummate the transaction or series of related transactions pursuant to which such Property was otherwise acquired by the Company or any Restricted Subsidiary),
(iii) under agreements relating to Purchase Money Indebtedness or Capitalized Lease Obligations Incurred that impose customary restrictions contained in Capital on the Property subject to such Purchase Money Indebtedness or Capitalized Lease Obligations,
(iv) relating to Indebtedness that is permitted to be Incurred and secured without also securing the Notes or the applicable Note Guarantee pursuant to Section 4.09 and Section 4.12 that limit the right of the debtor to dispose of the Property securing such Indebtedness, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict or
(v) customarily imposed on the transfer of copyrighted or patented materials or other intellectual property and customer provisions in agreements that restrict the property subject to assignment of such Capital Lease Obligations, purchase money obligations, security agreements or mortgagesany rights thereunder;
(fE) any encumbrance created in connection with a Qualified Receivables Transaction permitted under Section 4.09;
(F) any customary encumbrance or restriction imposed with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(gG) [reserved]any customary encumbrance or restriction on cash or other deposits or net worth imposed on customers under contracts entered into in the ordinary course of business;
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved];
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(mH) any encumbrance or restriction with respect pursuant to an Unrestricted agreement governing (i) any Bank Indebtedness of the Company or a Restricted Subsidiary permitted to be Incurred subsequent to the Closing Date pursuant to clause (b)(1) or (b)(16) of Section 4.09, or (ii) any Indebtedness permitted to be Incurred pursuant to clause (a) of Section 4.09 if the encumbrances and restrictions contained in any such agreement, taken as a whole, do not materially prejudice the ability of the Issuer to make payments on the Notes;
(I) encumbrances or restrictions existing under or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not provisions in asset sale agreements entered into in anticipation the ordinary course of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiarybusiness; and
(nJ) any encumbrances or restrictions imposed existing under or by reason of provisions in joint venture arrangements and other similar arrangements or arrangements with minority interests in any amendments of the contracts, instruments or obligations referred to in clauses (a) through (m) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the BorrowerRestricted Subsidiary.
Appears in 1 contract
Samples: Indenture (NTL Inc)
Restrictions on Distributions from Restricted Subsidiaries. (1) The Borrower shall will not, and shall will not cause or permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
: (1i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary Subsidiary; (provided that (x) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2ii) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by the Borrower Subsidiary; or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its property or assets to the Borrower or a any Restricted Subsidiary. , whether now owned or hereafter acquired, or which requires the grant of any security for an obligation if security is granted for another obligation; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(2) The foregoing restrictions provisions of this Section 8.2.15 [Restrictions on Distributions from Restricted Subsidiaries] the preceding paragraph (a) will not apply to encumbrances or restrictions existing under or by reason ofprohibit:
(a) any encumbrance or restriction pursuant to (x) the Credit Documents, (y) any ABL Facility or Term Facility or (z) any other agreement or instrument, in any agreement each case, in effect at or entered into on the Closing Date and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.15Date;
(b) any encumbrance or restriction with respect pursuant to a Restricted Subsidiary the CapEx Facilities;
(c) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness incurred by such Restricted Subsidiary of a Person, entered into on or prior to before the date on which such Person was acquired by or merged, amalgamated, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary was acquired or on which such agreement or instrument is assumed by the Borrower or became a any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness incurred Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the BorrowerBorrower or was merged, amalgamated, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(cd) any encumbrance or restriction:
(i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(ii) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(iii) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(e) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired;
(f) restrictions relating to any asset (or all of the assets) of and/or the Capital Stock of the Borrower and/or any Restricted Subsidiary which are imposed pursuant to an agreement entered into in connection with any disposition or other transfer, lease or license of such asset (or assets) and/or all or a portion of the Capital Stock of the relevant Person in each case that is permitted by this Agreement, in each case pending the closing of such sale or disposition;
(g) customary provisions in leases, licenses, joint venture agreements, sale and lease-back agreements, stock sale agreements and other similar agreements and instruments, which limitation is applicable only to the assets that are the subject of such agreements (or the Persons the Capital Stock of which is the subject of such agreement (or any “shell company” parent with respect thereto));
(h) encumbrances or restrictions arising or existing by reason of Applicable Law or any applicable rule, regulation or order, or required by any regulatory authority;
(i) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(j) any encumbrance or restriction pursuant to Hedging Obligations;
(k) other Indebtedness, Disqualified Stock or Preferred Stock of Non-Guarantor Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 9.4 that impose restrictions solely on the Non-Guarantor Subsidiaries party thereto or their Subsidiaries;
(l) any other agreement that does not restrict in any manner (directly or indirectly) Liens created pursuant to the Credit Documents on any collateral securing the secured obligations under the Senior Credit Documents and does not require the direct or indirect granting of any Lien securing any Indebtedness or other obligation by virtue of the granting of Liens on or pledge of property of any Credit Party to secure the such secured obligations;
(m) any encumbrance or restriction arising pursuant to an agreement or instrument (which, if it relates to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred pursuant to the provisions of Section 9.4 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole (A) are not materially less favorable to the Lenders than the encumbrances and restrictions contained in the Credit Documents as in effect on the Closing Date or (B) either (x) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on Loans or (y) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(n) any encumbrance or restriction existing by reason of any Lien permitted under Section 9.1; or
(o) any encumbrance or restriction pursuant to an agreement or instrument effecting a Refinancing refinancing of Indebtedness incurred Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (a) to (n) of this clause (2) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clause clauses (a) or to (bn) of this paragraph or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this paragraph or this clause (co); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Lenders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, lessors or grantors under contracts, leases or other agreements, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(e) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(f) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(g) [reserved];
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved];
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(m) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and
(n) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (a) through (m) of this paragraph; provided that such amendments instrument are not materially more restrictive with respect to such encumbrances and other restrictions, taken as a whole, than the encumbrances and restrictions than those prior contained in the Initial Agreement or Initial Agreements to which such amendment refinancing or refinancingamendment, supplement or other modification relates (as determined in good faith by the Borrower).
Appears in 1 contract
Restrictions on Distributions from Restricted Subsidiaries. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness owed to the Borrower or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Borrower or a Restricted Subsidiary. The foregoing restrictions of this Section 8.2.15 8.2.14 [Restrictions on Distributions from Restricted Subsidiaries] will not apply to encumbrances or restrictions existing under or by reason of:
(a) any encumbrance or restriction in any agreement in effect on the Closing Date and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.158.2.14;
(b) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or became a Restricted Subsidiary (other than Indebtedness incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(c) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred pursuant to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Lenders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement lease or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, customers or lessors under contracts or grantors under contracts, leases or other agreementsleases, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(e) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(f) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(g) [reserved]any encumbrance or restriction in any agreement or instrument in the Existing Receivables Financing and in connection with a Qualified Receivables Transaction;
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved]agreements governing Hedging Contracts, Interest Rate Agreements and Currency Agreements incurred not for speculative purposes;
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(m) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and
(nm) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (a) through (m) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Borrower.
Appears in 1 contract
Restrictions on Distributions from Restricted Subsidiaries. The Borrower shall Company will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness owed Payment Restriction with respect to the Borrower or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Borrower or a Restricted Subsidiary. The foregoing restrictions of this Section 8.2.15 [Restrictions on Distributions from Restricted Subsidiaries] will not apply to encumbrances or restrictions existing under or by reason of, except for:
(a) any encumbrance or restriction in any agreement such Payment Restriction in effect on the Closing Issue Date and under the Credit Agreement or any similar Payment Restriction under any other Credit Facility (to whether or not in effect on the extent not otherwise permitted by this Section 8.2.15Issue Date) set forth or any amendment, restatement, renewal, replacement or refinancing of any of the foregoing; PROVIDED that such similar Payment Restrictions are not, taken as a whole, more restrictive than the Payment Restrictions in effect on Schedule 8.2.15the Issue Date under the Credit Agreement;
(b) any encumbrance or restriction with respect such Payment Restriction under any agreement evidencing any Acquired Indebtedness that was permitted to a Restricted Subsidiary be incurred pursuant to an agreement relating this Indenture in effect at the time of such incurrence and not created in contemplation of such event; PROVIDED that such Payment Restriction only applies to any Indebtedness incurred by assets that were subject to such Restricted Subsidiary on or restriction and encumbrances prior to the date on which acquisition of such Restricted Subsidiary was acquired assets by the Borrower Company or became a Restricted Subsidiary (other than Indebtedness incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such dateits Subsidiaries;
(c) any encumbrance such Payment Restriction arising in connection with Refinancing Indebtedness; PROVIDED that any such Payment Restrictions that arise under such Refinancing Indebtedness are not, taken as a whole, more restrictive than those under the agreement creating or restriction evidencing the Indebtedness being refunded or refinanced;
(d) any Payment Restriction created pursuant to an asset purchase agreement, stock sale agreement effecting a Refinancing of Indebtedness incurred or similar instrument pursuant to an agreement referred which a bona-fide Asset Sale is to be consummated, the proceeds of which are applied as provided in clause (a) this Indenture, so long as such restriction or (b) of this paragraph or this clause (c) or contained in any amendment encumbrance shall apply only to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c); provided that the encumbrances and restrictions with respect assets subject to such Restricted Subsidiary contained in any Asset Sale and shall be effective only for a period from the execution and delivery of such refinancing agreement or amendment are no less favorable to instrument through the Lenders than encumbrances and restrictions with respect to earlier of the consummation of such Restricted Subsidiary contained in Asset Sale or the termination of such agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement agreement or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, lessors or grantors under contracts, leases or other agreements, in the case of each of clauses (i) and (ii), entered into in the ordinary course of businessinstrument;
(e) in the case customary nonassignment provisions of clause (3) any lease governing any leasehold interest of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements Company or mortgages securing Indebtedness of a any Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgagesSubsidiary;
(f) any restriction with respect to a Restricted Subsidiary Payment Restriction existing under or by reason of applicable law;
(g) any Payment Restriction imposed 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 Restricted Subsidiary pending the closing of such sale or disposition;
(g) [reserved];
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved];
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(m) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and
(nh) any encumbrances or purchase money obligations for property acquired in the ordinary course of business that impose restrictions imposed by any amendments of the contracts, instruments or obligations type referred to in clauses clause (a) through (md) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Borrowerdefinition of "Payment Restriction."
Appears in 1 contract
Samples: Indenture (Nci Building Systems Inc)
Restrictions on Distributions from Restricted Subsidiaries. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness owed to the Borrower or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Borrower or a Restricted Subsidiary. The foregoing restrictions of this Section 8.2.15 8.2.14 [Restrictions on Distributions from Restricted Subsidiaries] will not apply to encumbrances or restrictions existing under or by reason of:
(a) any encumbrance or restriction in any agreement in effect on the Closing Date and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.158.2.14;
(b) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or became a Restricted Subsidiary (other than Indebtedness incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower) and outstanding on such date;
(c) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred pursuant to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this paragraph or this clause (c); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Lenders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement lease or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, customers or lessors under contracts or grantors under contracts, leases or other agreementsleases, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(e) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(f) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(g) [reserved]any encumbrance or restriction in any agreement or instrument in connection with a Qualified Receivables Transaction customary for transactions of such type applicable to the Qualified Receivables Assets or the applicable Receivables Subsidiary;
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved];
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(m) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and
(n) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (a) through (m) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the Borrower8.
Appears in 1 contract
Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall not, and shall Company will not cause or permit any Restricted Subsidiary to, (other than the Issuer or any Intermediate Guarantor) to create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary (other than the Issuer or any Intermediate Guarantor) to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of which it is a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness)Subsidiary;
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed of which it is a restriction on the ability to make loans or advances)Subsidiary; or
(3) sell, lease or transfer any of its property Property or assets to the Borrower Company or any Restricted Subsidiary of which it is a Restricted Subsidiary. .
(b) The foregoing restrictions provisions of this Section 8.2.15 [Restrictions on Distributions from Restricted Subsidiaries] 4.08(a) will not apply to encumbrances or restrictions existing under or by reason ofprohibit:
(aA) any encumbrance or restriction in any pursuant to (i) applicable law, rule, regulation, order or governmental license, permit or concession or (ii) an agreement in effect on the Closing Date (including this Indenture, the Existing Credit Facility, the Intercreditor Deed and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.15Group Intercreditor Deed and the indentures governing the Existing Notes);
(bB) in respect of a Restricted Subsidiary acquired by the Company, the Issuer or any Restricted Subsidiary after the Closing Date, any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or arising prior to the date on which such Restricted Subsidiary was acquired by the Borrower Company or became a any Restricted Subsidiary (other than an encumbrance relating to Indebtedness incurred Incurred as consideration infor, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummateto, consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the BorrowerCompany or any Restricted Subsidiary) and outstanding on such date;
(cC) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred Incurred pursuant to an agreement referred to in clause (aA) or (bB) of this paragraph Section 4.08(b) or this clause (cC) or contained in any amendment or modification to an agreement referred to in clause (aA) or (bB) of this paragraph Section 4.08(b) or this clause (cC); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary restrictions, taken as a whole, contained in any such refinancing Refinancing agreement or amendment or modification are no less favorable in any material respect to the Lenders Holders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, lessors or grantors under contracts, leases or other agreements, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(eD) in the case of clause Section 4.08(a)(3), any encumbrance or restriction
(3i) that restricts in a customary manner the subletting, assignment or transfer of any Property or asset that is subject to a lease, license or similar contract,
(ii) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary so long as such restriction relates solely to the Property so acquired (other than any encumbrance or restriction created as consideration for, in contemplation of, in connection with or pursuant to the provision of, all or any portion of the preceding paragraph, funds or credit support utilized to consummate the transaction or series of related transactions pursuant to which such Property was otherwise acquired by the Company or any Restricted Subsidiary),
(iii) under agreements relating to Purchase Money Indebtedness or Capitalized Lease Obligations Incurred that impose customary restrictions contained in Capital on the Property subject to such Purchase Money Indebtedness or Capitalized Lease Obligations,
(iv) relating to Indebtedness that is permitted to be Incurred and secured without also securing the Notes or the applicable Note Guarantee pursuant to Section 4.09 and Section 4.12 that limit the right of the debtor to dispose of the Property securing such Indebtedness, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict or
(v) customarily imposed on the transfer of copyrighted or patented materials or other intellectual property and customer provisions in agreements that restrict the property subject to assignment of such Capital Lease Obligations, purchase money obligations, security agreements or mortgagesany rights thereunder;
(fE) any encumbrance created in connection with a Qualified Receivables Transaction permitted under Section 4.09;
(F) any customary encumbrance or restriction imposed with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(gG) [reserved]any customary encumbrance or restriction on cash or other deposits or net worth imposed on customers under contracts entered into in the ordinary course of business;
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved];
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(mH) any encumbrance or restriction with respect pursuant to an Unrestricted agreement governing (i) any Bank Indebtedness of the Company or a Restricted Subsidiary or any Pari Passu Lien Obligations permitted to be Incurred under this Indenture, and (ii) any Indebtedness permitted to be Incurred pursuant to clause (a) of Section 4.09 if the encumbrances and restrictions contained in any such agreement, taken as a whole, do not materially prejudice the ability of the Issuer to make payments on the Notes;
(I) encumbrances or restrictions existing under or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not provisions in asset sale agreements entered into in anticipation the ordinary course of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiarybusiness; and
(nJ) any encumbrances or restrictions imposed existing under or by reason of provisions in joint venture arrangements and other similar arrangements or arrangements with minority interests in any amendments of the contracts, instruments or obligations referred to in clauses (a) through (m) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the BorrowerRestricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Virgin Media Inc.)
Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall will not, and shall will not cause or permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
: (1i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower or any Restricted Subsidiary Subsidiary; (provided that (x) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2ii) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3iii) sell, lease or transfer any of its property or assets to the Borrower or a any Restricted Subsidiary. Subsidiary or (iv) create, incur, assume or suffer to exist any Lien upon their respective properties or revenues (other than Excluded Assets), whether now owned or hereafter acquired, or which requires the grant of any security for an obligation if security is granted for another obligation; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The foregoing restrictions provisions of this Section 8.2.15 [Restrictions on Distributions from Restricted Subsidiaries] the preceding paragraph (a) will not apply to encumbrances or restrictions existing under or by reason ofprohibit:
(ai) any encumbrance or restriction pursuant to (x) the Credit Documents, (y) any ABL Facility or (z) any other agreement or instrument, in any agreement each case, in effect at or entered into on the Closing Date and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.15Date;
(bii) any encumbrance or restriction with respect pursuant to a Restricted Subsidiary (x) the CapEx Facilities or the (y) the New PortLP Facility;
(iii) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness incurred by such Restricted Subsidiary of a Person, entered into on or prior to before the date on which such Person was acquired by or merged, amalgamated, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary was acquired or on which such agreement or instrument is assumed by the Borrower or became a any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness incurred Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary Person became a Restricted Subsidiary or was acquired by the BorrowerBorrower or was merged, amalgamated, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the Successor Company;
(civ) any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(B) contained in mortgages, pledges, charges or other security agreements permitted under this Agreement and the Security Documents or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement and the Security Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements; or
(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(v) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Agreement and the Security Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(vi) restrictions relating to any asset (or all of the assets) of and/or the Capital Stock of the Borrower and/or any Restricted Subsidiary which are imposed pursuant to an agreement entered into in connection with any disposition or other transfer, lease or license of such asset (or assets) and/or all or a portion of the Capital Stock of the relevant Person in each case that is permitted by this Agreement, in each case pending the closing of such sale or disposition;
(vii) customary provisions in leases, licenses, joint venture agreements, sale and lease-back agreements, stock sale agreements and other similar agreements and instruments, which limitation is applicable only to the assets that are the subject of such agreements (or the Persons the Capital Stock of which is the subject of such agreement (or any “shell company” parent with respect thereto));
(viii) encumbrances or restrictions arising or existing by reason of Applicable Law or any applicable rule, regulation or order, or required by any regulatory authority;
(ix) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;
(x) any encumbrance or restriction pursuant to Hedging Obligations;
(xi) other Indebtedness, Disqualified Stock or Preferred Stock of Non-Guarantor Subsidiaries permitted to be Incurred or issued subsequent to the Closing Date pursuant to the provisions of Section 9.04 that impose restrictions solely on the Non-Guarantor Subsidiaries party thereto or their Subsidiaries;
(xii) any other agreement that does not restrict in any manner (directly or indirectly) Liens created pursuant to the Credit Documents on any Collateral securing the Secured Obligations and does not require the direct or indirect granting of any Lien securing any Indebtedness or other obligation by virtue of the granting of Liens on or pledge of property of any Credit Party to secure the Secured Obligations;
(xiii) any encumbrance or restriction arising pursuant to an agreement or instrument (which, if it relates to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred pursuant to the provisions of Section 9.04 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole (A) are not materially less favorable to the Lenders than the encumbrances and restrictions contained in the Credit Documents as in effect on the Closing Date or (B) either (x) the Borrower determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on Term Loans or (y) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(xiv) any encumbrance or restriction existing by reason of any Lien permitted under Section 9.01; or
(xv) any encumbrance or restriction pursuant to an agreement or instrument effecting a Refinancing refinancing of Indebtedness incurred Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (i) to (xiv) of this clause (b) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clause clauses (ai) or to (bxiv) of this paragraph or this clause (c) or contained in any amendment to an agreement referred to in clause (a) or (b) of this paragraph or this clause (cxv); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Lenders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, lessors or grantors under contracts, leases or other agreements, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(e) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money obligations, security agreements or mortgages;
(f) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(g) [reserved];
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved];
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(m) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and
(n) any encumbrances or restrictions imposed by any amendments of the contracts, instruments or obligations referred to in clauses (a) through (m) of this paragraph; provided that such amendments instrument are not materially more restrictive with respect to such encumbrances and other restrictions, taken as a whole, than the encumbrances and restrictions than those prior contained in the Initial Agreement or Initial Agreements to which such amendment refinancing or refinancingamendment, supplement or other modification relates (as determined in good faith by the Borrower).
Appears in 1 contract
Samples: Term Loan Credit Agreement (Algoma Steel Group Inc.)
Restrictions on Distributions from Restricted Subsidiaries. (a) The Borrower shall not, and shall Company will not cause or permit any Restricted Subsidiary to, (other than the Issuer or any Intermediate Guarantor) to create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary (other than the Issuer or any Intermediate Guarantor) to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower Company or any Restricted Subsidiary (provided that (x) the priority that any series of Preferred Stock of which it is a Restricted Subsidiary has in receiving dividends or liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (y) the subordination of Indebtedness owed to the Borrower or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness)Subsidiary;
(2) make any loans or advances to the Borrower or a Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Borrower Company or any Restricted Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed of which it is a restriction on the ability to make loans or advances)Subsidiary; or
(3) sell, lease or transfer any of its property Property or assets to the Borrower Company or any Restricted Subsidiary of which it is a Restricted Subsidiary. .
(b) The foregoing restrictions provisions of this Section 8.2.15 [Restrictions on Distributions from Restricted Subsidiaries] 4.08(a) will not apply to encumbrances or restrictions existing under or by reason ofprohibit:
(aA) any encumbrance or restriction in any pursuant to (i) applicable law, rule, regulation, order or governmental license, permit or concession or (ii) an agreement in effect on the Closing Date (including this Indenture, the New Credit Facility, the indenture governing the Existing Notes, the Bridge Facility or any exchange notes issued in relation thereto, the Intercreditor Deed and (to the extent not otherwise permitted by this Section 8.2.15) set forth on Schedule 8.2.15Group Intercreditor Deed);
(bB) in respect of a Restricted Subsidiary acquired by the Company, the Issuer or any Restricted Subsidiary after the Closing Date, any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or arising prior to the date on which such Restricted Subsidiary was acquired by the Borrower Company or became a any Restricted Subsidiary (other than an encumbrance relating to Indebtedness incurred Incurred as consideration infor, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummateto, consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the BorrowerCompany or any Restricted Subsidiary) and outstanding on such date;
(cC) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred Incurred pursuant to an agreement referred to in clause (aA) or (bB) of this paragraph Section 4.08(b) or this clause (cC) or contained in any amendment or modification to an agreement referred to in clause (aA) or (bB) of this paragraph Section 4.08(b) or this clause (cC); provided provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary restrictions, taken as a whole, contained in any such refinancing Refinancing agreement or amendment or modification are no less favorable in any material respect to the Lenders Holders than the encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements, as determined in good faith by the Borrower;
(i) customary non-assignment provisions in any contract, license, lease, easement or sale or exchange agreement and (ii) cash, other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers, lessors or grantors under contracts, leases or other agreements, in the case of each of clauses (i) and (ii), entered into in the ordinary course of business;
(eD) in the case of clause Section 4.08(a)(3), any encumbrance or restriction
(3i) that restricts in a customary manner the subletting, assignment or transfer of any Property or asset that is subject to a lease, license or similar contract,
(ii) encumbering Property at the time such Property was acquired by the Company or any Restricted Subsidiary so long as such restriction relates solely to the Property so acquired (other than any encumbrance or restriction created as consideration for, in contemplation of, in connection with or pursuant to the provision of, all or any portion of the preceding paragraph, funds or credit support utilized to consummate the transaction or series of related transactions pursuant to which such Property was otherwise acquired by the Company or any Restricted Subsidiary),
(iii) under agreements relating to Purchase Money Indebtedness or Capitalized Lease Obligations Incurred that impose customary restrictions contained in Capital on the Property subject to such Purchase Money Indebtedness or Capitalized Lease Obligations,
(iv) relating to Indebtedness that is permitted to be Incurred and secured without also securing the Notes or the applicable Note Guarantee pursuant to Section 4.09 and Section 4.12 that limit the right of the debtor to dispose of the Property securing such Indebtedness, purchase money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the extent such restrictions restrict or
(v) customarily imposed on the transfer of copyrighted or patented materials or other intellectual property and customer provisions in agreements that restrict the property subject to assignment of such Capital Lease Obligations, purchase money obligations, security agreements or mortgagesany rights thereunder;
(fE) any encumbrance created in connection with a Qualified Receivables Transaction permitted under Section 4.09;
(F) any customary encumbrance or restriction imposed with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(gG) [reserved]any customary encumbrance or restriction on cash or other deposits or net worth imposed on customers under contracts entered into in the ordinary course of business;
(h) Liens otherwise permitted to be incurred under the provisions of Section 8.2.2 [Liens] that limit the right of the debtor to Dispose of the assets subject to such Liens;
(i) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements entered into in connection with an Investment) entered into with the approval of the Borrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(j) encumbrances or restrictions applicable only to a Foreign Subsidiary;
(k) [reserved];
(l) Swap Agreements permitted under Section 8.2.12 [Swaps];
(mH) any encumbrance or restriction with respect pursuant to an Unrestricted agreement governing (i) any Bank Indebtedness of the Company or a Restricted Subsidiary permitted to be Incurred subsequent to the Closing Date pursuant to clause (b)(1) or (b)(16) of Section 4.09, or (ii) any Indebtedness permitted to be Incurred pursuant to clause (a) of Section 4.09 if the encumbrances and restrictions contained in any such agreement, taken as a whole, do not materially prejudice the ability of the Issuer to make payments on the Notes;
(I) encumbrances or restrictions existing under or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not provisions in asset sale agreements entered into in anticipation the ordinary course of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiarybusiness; and
(nJ) any encumbrances or restrictions imposed existing under or by reason of provisions in joint venture arrangements and other similar arrangements or arrangements with minority interests in any amendments of the contracts, instruments or obligations referred to in clauses (a) through (m) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing, as determined in good faith by the BorrowerRestricted Subsidiary.
Appears in 1 contract
Samples: Indenture (NTL:Telewest LLC)
