Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create 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 to Loral Space or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space or any of its Restricted Subsidiaries; (2) make loans or advances to Loral Space or any of its Restricted Subsidiaries; or (3) transfer any of its properties or assets to Loral Space or any of its Restricted Subsidiaries. (b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of: (1) Existing Indebtedness as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Date; (2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary; (3) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date; (4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors; (5) applicable law; (6) any instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty to be incurred; (7) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices; (8) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08; (9) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition; (10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced; (11) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien; (12) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and (13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
Appears in 4 contracts
Sources: Guaranty (Loral Cyberstar Inc), Guaranty (Loral Space & Communications LTD), Guaranty (Loral Space & Communications LTD)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create 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 to Loral Space or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space or any of its Restricted Subsidiaries;
(2) make loans or advances to Loral Space or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to Loral Space or any of its Restricted Subsidiaries.
(b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Subordinated Notes and the Guarantees of the Subordinated Notes by the Subsidiary Guarantors;
(5) applicable law;
(6) any instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty to be incurred;
(7) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
(8) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08;
(9) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(12) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
(13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
Appears in 3 contracts
Sources: Subordinated Guaranty (Loral Space & Communications LTD), Subordinated Guaranty (Loral Cyberstar Inc), Subordinated Guaranty (Loral Cyberstar Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Parent shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to do any of the following: (1a)(i) pay dividends or make any other distributions to the Parent or any Restricted Subsidiary on its Capital Stock or (ii) pay any Financial Indebtedness owed to Loral Space the Parent or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space or any of its Restricted Subsidiaries;
Subsidiary; (2b) make loans or advances to Loral Space the Parent or any of its Restricted Subsidiaries; or
Subsidiary or (3c) transfer any of its properties or assets to Loral Space the Parent or any of its Restricted Subsidiaries.
(b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to Subsidiary, except for such encumbrances or restrictions existing under or by reason of:
of (1) agreements governing Credit Facilities or Existing Indebtedness as in effect on the Issue Date Indebtedness, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; , provided that such agreements and amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement replacements or refinancings are no more restrictivenot materially less favorable to the holders of the Notes, taken as a whole, with respect to such dividend and other payment restrictions than those contained contained, in the case of Credit Facilities, in agreements governing Credit Facilities or, in the case of Existing Indebtedness, in agreements governing such Existing Indebtedness, in either case as in effect on the Issue Date;
date of this Indenture, (2) this Indenture, the Notes and the Note Guarantees, (3) any customary (as conclusively determined agreement for the sale or other disposition of Equity Interests in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement restricts distributions by that Restricted Subsidiary pending the sale or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause other disposition, (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5) applicable law;
(6) any instrument governing Financial Indebtedness or Capital Stock of a Person acquired by Loral Space the Parent or any of its Restricted Subsidiaries Subsidiary as in effect at the time of such acquisition (except to the extent such Financial Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; , provided that, in 22 the case of Financial Indebtedness, such Financial Indebtedness was permitted by the terms of this Guaranty Indenture to be incurred;
, (75) by reason of customary non-provisions restricting the subletting or assignment provisions in leases entered into in of any lease or the ordinary course transfer of business and consistent with past practices;
copyrighted or patented materials, (8) 6) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3c) of paragraph above on the property so acquired, (a7) of this Section 4.08;
(9) any agreement customary provisions in agreements for the sale of property or other disposition assets, (8) customary provisions in agreements that restrict the assignment of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale such agreements or other disposition;
rights thereunder, (10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(129) provisions with respect to the disposition or distribution of assets or property in any joint venture agreementsagreement, assets sale agreementsagreement, stock sale agreements and agreement or other similar agreements agreement in each case entered into in the ordinary course of business; and
, but in each case only to the extent such encumbrance or restriction relates to the transfer of the property, or encumbers or restricts the assets, subject to such agreement, (1310) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business, (11) Permitted Refinancing Indebtedness, provided that the encumbrances and restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially less favorable to the Holders, taken as a whole, than those contained in the agreements governing the Financial Indebtedness being refinanced, (12) any Liens not prohibited by Section 4.14 that limit the right of the debtor to dispose of the assets subject to such Liens, or (13) applicable law.
Appears in 3 contracts
Sources: Indenture (CGG), Indenture (CGG Marine B.V.), Indenture (CGG Marine B.V.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to Loral Space the Issuer or any of its other Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness Indebtedness owed to Loral Space the Issuer or any Restricted Subsidiary (it being understood that the priority of its any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and the subordination of loans or advances made to the Issuer or any Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to pay any Indebtedness);
(2) make loans or advances to Loral Space the Issuer or any other Restricted Subsidiary (it being understood that the subordination of its loans or advances made to the Issuer or any Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Issuer 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 properties or assets to Loral Space the Issuer or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of its Restricted Subsidiariestransfer described in clause (1) or (2) of this Section 4.09(a)).
(b) The restrictions set forth in paragraph (aSection 4.09(a) of this Section 4.08 shall not apply to prohibit encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness Indebtedness, as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as agreements in effect on the Issue Date;
(2) this Indenture and the Notes (and any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired DebtNote Guarantee), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendmentsapplicable law, modificationsrule, restatements, renewals, increases, supplements, refundings, replacements regulation or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Dateorder;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5) applicable law;
(6) any instrument governing Indebtedness or Capital Stock of a Person Restricted Subsidiary acquired by Loral Space the Issuer or any of its Restricted Subsidiaries Subsidiary as in effect at the time of such acquisition or at the time an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisitionacquisition or redesignation), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the PersonPerson or any of its Subsidiaries, or the property or assets of the PersonPerson or any of its Subsidiaries, so acquiredacquired or redesignated; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted to be incurred by the terms of this Guaranty to be incurredIndenture;
(75) customary non-assignment provisions in leases contracts and licenses entered into in the ordinary course of business and consistent with past practicesbusiness;
(8) 6) customary restrictions in leases (including capital leases), security agreements or mortgages or other purchase money obligations for property acquired in the ordinary course of business that to the extent they impose restrictions on the property so acquired purchased or leased of the nature described in clause (3) of paragraph (a) of this Section 4.084.09(a)(3);
(97) any agreement for the sale or other disposition of all or substantially all the Capital Stock or the assets of a Restricted Subsidiary that to the extent it restricts distributions by that Restricted Subsidiary pending its the sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that 8) restrictions in connection with Liens permitted to be incurred under Section 4.13 to the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness that extent they limit the right of the debtor to dispose of the assets subject to such LienLiens, including such restrictions in respect of Permitted Purchase Money Indebtedness and Permitted Nonrecourse Indebtedness;
(129) provisions with respect to limiting the disposition or distribution of assets or property in joint venture agreements, assets asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into in agreements, which limitation is applicable only to the ordinary course assets that are the subject of business; andsuch agreements;
(1310) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(11) customary provisions imposed on the transfer of copyrighted or patented materials;
(12) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary;
(13) contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or any such Restricted Subsidiary;
(14) restrictions on the transfer of property or assets required by any regulatory authority having jurisdiction over the Issuer or any Restricted Subsidiary or any of their businesses;
(15) any encumbrances or restrictions existing under (A) development agreements or other contracts entered into with municipal entities, agencies or sponsors in connection with the entitlement or development of real property or (B) agreements for funding of infrastructure, including in respect of the issuance of community facility district bonds, metro district bonds, ▇▇▇▇▇-▇▇▇▇ bonds and subdivision improvement bonds, and similar bonding requirements arising in the ordinary course of business;
(16) any encumbrances or restrictions that require “lockbox” or similar arrangements with respect to Non-Recourse Debt, Permitted Nonrecourse Indebtedness and Permitted Purchase Money Indebtedness;
(17) any encumbrances or restrictions of the type referred to in Section 4.09(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (16) above or clause (18) below of this Section 4.09(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings, in the good faith judgment of the Senior Management or the Board of Directors, are not materially more restrictive, taken as a whole, with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(18) other Indebtedness permitted to be incurred subsequent to the Issue Date pursuant to Section 4.10; provided that such encumbrances or restrictions under this clause (18) shall not materially adversely affect the Issuer’s ability to make anticipated principal and interest payments on the Notes (in the good faith judgment of Senior Management or the Board of Directors).
Appears in 3 contracts
Sources: Indenture (Forestar Group Inc.), Indenture (Forestar Group Inc.), Indenture (Forestar Group Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Issuer shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any such Restricted Subsidiary to:
(1) (a) pay dividends or make any other distributions on its Capital Stock to Loral Space the Issuer or any of its other Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or (b) pay any indebtedness Indebtedness owed to Loral Space the Issuer or any Restricted Subsidiary (it being understood that the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on other Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock, and the subordination of loans or advances made to the Issuer or any of its the Restricted SubsidiariesSubsidiaries to other Indebtedness incurred by the Issuer or any of the Restricted Subsidiaries shall not be deemed a restriction on the ability to pay any Indebtedness);
(2) make loans or advances to Loral Space the Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Issuer or any of its the Restricted SubsidiariesSubsidiaries to other Indebtedness incurred by the Issuer or any of the Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to Loral Space the Issuer or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of its Restricted Subsidiariestransfer described in clause (1) or (2) of this Section 4.09(a)).
(b) The restrictions set forth in paragraph (aNotwithstanding the foregoing, Section 4.09(a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness Indebtedness, in each case, as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as agreements in effect on the Issue Date;
(2) this Indenture and the Notes (and any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired DebtNote Guarantee), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendmentsapplicable law, modificationsrule, restatements, renewals, increases, supplements, refundings, replacements regulation or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Dateorder;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5) applicable law;
(6) any instrument governing Indebtedness or agreement with respect to any property or assets or Indebtedness, preferred stock or Capital Stock acquired, or any Person acquired, by the Issuer or any Restricted Subsidiary (including as a result of a Person acquired by Loral Space becoming a Restricted Subsidiary as a result of such acquisition or any of its Unrestricted Subsidiary being redesignated as a Restricted Subsidiaries Subsidiary) as in effect at the time of such acquisition or redesignation (except to the extent such Indebtedness Indebtedness, preferred stock or Capital Stock was incurred or issued in connection with or in contemplation of such acquisitionacquisition or redesignation), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than (x) the Person, Person or any of its Subsidiaries or (y) the property or assets of the Person, Person or any of its Subsidiaries so acquired; provided that, in 22 the case of IndebtednessIndebtedness or preferred stock, such Indebtedness or preferred stock was permitted to be incurred or issued by the terms of this Guaranty to be incurredIndenture;
(75) customary non-provisions restricting the subletting, assignment provisions or transfer of any property or assets in leases leases, conveyances, contracts and licenses entered into in the ordinary course of business and consistent with past practicesbusiness;
(8) 6) customary restrictions in leases (including capital leases and operating leases), security agreements or mortgages or other purchase money obligations for property acquired in the ordinary course of business that to the extent they impose restrictions on the property so acquired purchased or leased, or subject to such security interest or mortgage, of the nature described in clause (3) of paragraph (a) of this Section 4.084.09(a)(3);
(97) any agreement for the sale or other disposition of all or substantially all the Capital Stock or the assets of a Restricted Subsidiary that to the extent it restricts distributions by that Restricted Subsidiary pending its the sale or other disposition;
(108) Liens permitted to be incurred under Section 4.13 (and related agreements or Indebtedness secured by such Liens) Permitted Refinancing Indebtedness; provided that to the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness that extent they limit the right of the debtor to dispose of the assets subject to such LienLiens;
(129) provisions with respect to limiting the disposition or distribution of assets or property or Equity Interests in joint venture or development agreements, assets partnership or operating agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into agreements, which limitation is applicable only to the property, assets or Equity Interests that are the subject of such agreements, and restrictions on Indebtedness, Equity Interests or other securities in the ordinary course or of business; andUnrestricted Subsidiaries;
(1310) restrictions on cash or other deposits or net worth made to secure letters of credit or surety or other bonds issued in connection therewith or imposed by customers under contracts entered into in the ordinary course of business, and deposits with respect to any obligations described in clauses (7), (9) and (16) of Section 4.10(b);
(11) customary provisions imposed on the transfer of copyrighted or patented materials;
(12) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary;
(13) any encumbrances or restrictions arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and the Restricted Subsidiaries;
(14) restrictions on the transfer of property or assets subject to industrial revenue or similar bond financing or otherwise, required by any development, governmental or regulatory authority having jurisdiction over the Issuer or any Restricted Subsidiary or any of their businesses;
(15) any encumbrances or restrictions existing under (A) development agreements or other contracts entered into with municipal entities, agencies or sponsors in connection with the entitlement or development of real property, (B) agreements for funding of infrastructure, including in respect of the issuance of community facility district bonds, metro district bonds, ▇▇▇▇▇-▇▇▇▇ bonds and subdivision improvement bonds, and similar bonding requirements arising in the ordinary course of business of a land developer or homebuilder or other Permitted Business or (C) joint venture, partnership, operating or similar agreements;
(16) contractual obligations that require “lockboxes” to be maintained or similar obligations with respect to Non-Recourse Debt and Indebtedness secured by a Permitted Lien pursuant to clause (c) of the definition thereof;
(17) any encumbrances or restrictions pursuant to Hedging Obligations or under Non-Recourse Debt or subordination provisions of any subordinated debt;
(18) any encumbrances or restrictions pursuant to the Issuer Organizational Documents, the Restricted Subsidiary Organizational Documents or the Development Agreements;
(19) any encumbrances or restrictions of the type referred to in clauses (1) through (3) of Section 4.09(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (18) or clause (20) of this Section 4.09(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings, in the good faith judgment of the Issuer, are not materially more restrictive, taken as a whole, with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(20) any encumbrances or restrictions existing under Indebtedness incurred or preferred stock issued in accordance with the covenant described in Section 4.10 after the Issue Date that (a) in the good faith judgment of the Issuer, (x) are not materially more restrictive, taken as a whole, with respect to such encumbrance and other restrictions than the more restrictive of those applicable to the Issuers in this Indenture or the Credit Agreement on the Issue Date or (y) will not materially adversely affect the Issuers’ ability to make anticipated principal and interest payments on the Notes, or (b) apply only during the continuance of a default under such Indebtedness.
Appears in 2 contracts
Sources: Indenture (Five Point Holdings, LLC), Indenture (Five Point Holdings, LLC)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Issuer shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to Loral Space the Issuer or any other Restricted Subsidiary of its Restricted Subsidiariesthe Issuer, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness Indebtedness owed to Loral Space the Issuer or any Restricted Subsidiary of the Issuer (it being understood that the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and the subordination of loans or advances made to the Issuer or any of its Restricted SubsidiariesSubsidiaries to other Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to pay any Indebtedness);
(2) make loans or advances to Loral Space the Issuer or any other Restricted Subsidiary of the Issuer (it being understood that the subordination of loans or advances made to the Issuer or any of its Restricted SubsidiariesSubsidiaries to other Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to Loral Space the Issuer or any other Restricted Subsidiary of its Restricted Subsidiariesthe Issuer (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) of this Section 4.09(a)).
(b) The restrictions set forth in paragraph (aSection 4.09(a) of this Section 4.08 shall not apply to prohibit encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and Existing Project Loans, in each case, as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as agreements in effect on the Issue Date;
(2) any customary (as conclusively determined , in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided thateach case, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, extensions, renewals, increases, supplements, refundings, replacements or refinancings thereofof those agreements; provided that such amendmentsthe encumbrances and restrictions in the amendment, modificationsmodification, restatementsrestatement, renewalsextension, increases, supplements, refundingsrenewal, replacement or refinancings are no more restrictiverefinancing are, taken as a whole, with respect not materially less favorable to such dividend the Holders of Notes than the encumbrances or restrictions being amended, modified, restated, extended, renewed, replaced or refinanced;
(2) this Indenture and other payment restrictions than those contained in such Credit Agreementthe Notes (and any Note Guarantee);
(3) applicable law, as in effect on the Issue Daterule, regulation or order;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5) applicable law;
(6) any instrument governing Indebtedness or Capital Stock of a Person Restricted Subsidiary acquired by Loral Space the Issuer or any Restricted Subsidiary of its Restricted Subsidiaries the Issuer as in effect at the time of such acquisition or at the time an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary of the Issuer (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisitionacquisition or redesignation), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the PersonPerson or any of its Subsidiaries, or the property or assets of the PersonPerson or any of its Subsidiaries, so acquiredacquired and any amendments, modifications, restatements, extensions, renewals, replacements or refinancings of those agreements (provided that the encumbrances and restrictions in the amendment, modification, restatement, extension, renewal, replacement or refinancing are, taken as a whole, not materially less favorable to the Holders of Notes than the encumbrances or restrictions being amended, modified, restated, extended, renewed, replaced or refinanced); provided that, in 22 the case of Indebtedness, such Indebtedness was permitted to be incurred by the terms of this Guaranty to be incurredIndenture;
(75) customary non-assignment provisions in leases contracts and licenses entered into in the ordinary course of business and consistent with past practicesbusiness;
(8) 6) customary restrictions in leases (including capital leases), security agreements or mortgages or other purchase money obligations for property acquired in the ordinary course of business that to the extent they impose restrictions on the property so acquired purchased or leased of the nature described in clause (3) of paragraph (a) of this Section 4.084.09(a)(3);
(97) any agreement for the sale or other disposition of all or substantially all the Capital Stock or the assets of a Restricted Subsidiary that of the Issuer to the extent it restricts distributions by that Restricted Subsidiary pending its the sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that 8) Liens permitted to be incurred under Section 4.13 to the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness that extent they limit the right of the debtor to dispose of the assets subject to such LienLiens;
(129) provisions with respect to limiting the disposition or distribution of assets or property in joint venture agreements, assets asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into in agreements, which limitation is applicable only to the ordinary course assets that are the subject of business; andsuch agreements;
(1310) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(11) customary provisions imposed on the transfer of copyrighted or patented materials;
(12) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary of the Issuer;
(13) contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary of the Issuer in any manner material to the Issuer or any such Restricted Subsidiary;
(14) restrictions on the transfer of property or assets required by any regulatory authority having jurisdiction over the Issuer or any Restricted Subsidiary of the Issuer or any of their businesses;
(15) any encumbrances or restrictions existing under (A) development agreements or other contracts entered into with municipal entities, agencies or sponsors in connection with the entitlement or development of real property or (B) agreements for funding of infrastructure, including in respect of the issuance of community facility district bonds, metro district bonds, m▇▇▇▇-▇▇▇▇ bonds and subdivision improvement bonds, and similar bonding requirements arising in the ordinary course of business of a homebuilder;
(16) any encumbrances or restrictions that require “lockbox” or similar obligations with respect to Non-Recourse Debt and Indebtedness secured by a Permitted Lien pursuant to clause (c) of the definition thereof
(17) any encumbrances or restrictions of the type referred to in Section 4.09(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (16) or clause (18) of this Section 4.09(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings, in the good faith judgment of the Senior Management or the Board of Directors, are not materially more restrictive, taken as a whole, with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(18) (x) other Indebtedness incurred or preferred stock issued by any Restricted Subsidiary in accordance with Section 4.10 that, in the good faith judgment of Senior Management or the Board of Directors, are not materially more restrictive, taken as a whole, with respect to such encumbrance and other restrictions, than those applicable to the Issuer in this Indenture on the Issue Date (which results in encumbrances or restrictions on Restricted Subsidiaries of the Issuer comparable to those applicable to the Issuer) or (y) other Indebtedness permitted to be incurred subsequent to the Issue Date pursuant to Section 4.10; provided that with respect to this clause (y) of this clause (18), such encumbrances or restrictions shall not materially adversely affect the Issuer’s ability to make anticipated principal and interest payments on the Notes (in the good faith judgment of Senior Management or the Board of Directors).
Appears in 2 contracts
Sources: Indenture (Howard Hughes Corp), Indenture (Howard Hughes Corp)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Borrower shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary of the Borrower to:
(1i) pay dividends or make any other distributions on or in respect of its Capital Stock to Loral Space or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space the Borrower or any of its Restricted Subsidiaries;
(2ii) make loans or advances or to Loral Space pay any Indebtedness or other obligation owed to the Borrower or any Restricted Subsidiary of its Restricted Subsidiariesthe Borrower; or
(3iii) transfer any of its properties property or assets to Loral Space the Borrower or any other Restricted Subsidiary of its Restricted Subsidiaries.the Borrower,
(b) The restrictions set forth in paragraph (aSection 5.15(a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
(1i) Existing Indebtedness as in effect on the Issue Date and any amendmentsapplicable law, modificationsrule, restatements, renewals, increases, supplements, refundings, replacements regulation or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Dateorder;
(2ii) any customary (as conclusively determined in good faith by this Agreement and the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted SubsidiaryLoan Documents;
(3iii) customary non-assignment provisions of any contract or any lease of any Restricted Subsidiary of the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue DateBorrower;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5) applicable law;
(6iv) any instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition)Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, Person or the property properties or assets of the Person, Person so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty to be incurred;
(7v) customary non-assignment provisions the Existing Indebtedness (other than this Facility) and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof (including any Refinancing Indebtedness in leases entered into in the ordinary course of business and consistent with past practices;
(8) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08;
(9) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtednessrespect thereof); provided that any restrictions imposed pursuant to any such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing (i) are ordinary and customary with respect to facilities similar to the restrictions contained in Existing Indebtedness (under the agreements governing such Permitted Refinancing Indebtedness relevant circumstances), (ii) are no not materially more restrictive, taken as a whole, than those contained in the agreements governing Existing Indebtedness and (iii) will not materially affect the Indebtedness being refinancedBorrower’s ability to make anticipated principal and interest payments on the Loans (in each case as determined in good faith by the Board of Directors of the Borrower);
(11vi) Liens securing Indebtedness that limit agreements existing on the right Closing Date (other than those specified in clauses (i) and (v) above) to the extent and in the manner such agreements are in effect on the Closing Date and listed on Schedule 5.15;
(vii) restrictions on the transfer of assets (other than cash) held in a Restricted Subsidiary of the debtor to dispose Borrower imposed under any agreement governing secured Indebtedness incurred in accordance with this Agreement;
(viii) provisions in agreements evidencing permitted secured Indebtedness under this Agreement that impose restrictions on the collateral securing such Indebtedness;
(ix) restrictions on the transfer of the assets subject to any Lien permitted under this Agreement imposed by the holder of such Lien;
(12x) provisions with respect restrictions imposed by any agreement to the disposition or distribution of sell assets or property Capital Stock permitted under this Agreement to any Person pending the closing of such sale;
(xi) [reserved];
(xii) the requirements of any Qualified Securitization Transaction that are exclusively applicable to any Securitization Subsidiary formed in connection therewith;
(xiii) customary provisions in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements relating solely to such joint venture;
(xiv) customary provisions in leases, licenses and other agreements entered into in the ordinary course of business; and;
(13xv) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of businessbusiness that such contract restricts solely the property or assets that are subject to it and does not extend to any other asset or property of the Borrower or any Restricted Subsidiary;
(xvi) other Indebtedness, Disqualified Capital Stock or Preferred Stock of Foreign Subsidiaries of the Borrower permitted to be incurred subsequent to the Closing Date pursuant to Section 5.8 hereof that impose restrictions solely on the Foreign Subsidiaries party thereto; provided that the restrictions will not materially affect the ability of the Borrowers to pay the principal, interest and premium, if any on the Loans, as determined in good faith by the Borrower; and
(xvii) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (ii) through (iv) and (vi) through (xvi) of this Section 5.15(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Borrower’s Board of Directors, not materially more restrictive with respect to such dividend and other payment restrictions, taken as a whole, than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Sources: Term Loan Agreement (SeaCube Container Leasing Ltd.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space shall Issuer will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create 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 to Loral Space or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, to Issuer or any Guarantor, or pay any indebtedness owed to Loral Space Issuer or any of its Restricted SubsidiariesGuarantor;
(2) make loans or advances to Loral Space Issuer or any of its Restricted SubsidiariesGuarantor; or
(3) transfer any of its properties or assets to Loral Space Issuer or any of its Restricted Subsidiaries.
(b) The Guarantor. However, the preceding restrictions set forth in paragraph (a) of this Section 4.08 shall will not apply to encumbrances or restrictions existing under or by reason of:
(1) any Senior Debt or Existing Indebtedness as in effect on the Issue Date Indebtedness, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements amendments or refinancings thereof; provided PROVIDED that such amendmentsSenior Debt, modifications, restatements, renewals, increases, supplements, refundings, replacement and any amendments or refinancings of Senior Debt or Existing Indebtedness, are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Senior Credit Facility or such Existing Indebtedness, as in effect on the Issue Datedate of this Indenture;
(2) this Indenture and the Notes and any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary Indebtedness that is contained in an agreement PARI PASSU to the Notes, and any amendments or instrument governing refinancings thereof; PROVIDED that such amendments or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than refinancings are not materially more restrictive taken as a whole with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances provisions than those contained in this Indenture and restrictions permit the distribution of funds to Notes on the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiarydate hereof;
(3) the Credit Agreement as Senior Preferred Stock and the Exchange Debentures issuable in effect on exchange for the Issue Date and any amendmentsSenior Preferred Stock, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreementeach case, as in effect on the Issue Datedate of this Indenture, and any amendments or refinancings thereof; PROVIDED that such amendments or refinancings are not materially more restrictive taken as a whole with respect to such provisions than those contained in this Indenture and the Notes on the date hereof;
(4) the Loral Space Indenture and the notes issued thereunderstatutory or contractual provisions requiring PRO RATA treatment of holders of Capital Stock of Restricted Subsidiaries held, this Guaranty and the Notes and the Guarantees of the Notes in whole or in part, by the Subsidiary GuarantorsPersons other than Issuer or any Restricted Subsidiary;
(5) applicable law;
(6) any instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided PROVIDED that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty Indenture to be incurred;
(7) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
(8) capital leases or purchase money obligations for property assets acquired or leased in the ordinary course of business that impose restrictions on the property assets so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08the preceding paragraph;
(9) any agreement for the sale or other disposition of any assets, including Capital Stock of a Restricted Subsidiary Subsidiary, that restricts the transfer of such assets, or in the case of the sale of Capital Stock of such Restricted Subsidiary, distributions by that such Restricted Subsidiary Subsidiary, pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided PROVIDED that the such dividend and other restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness otherwise permitted to be incurred pursuant to Section 4.13 hereof that limit the right of the debtor Issuer or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
(12) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and;
(13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(14) any agreement relating to a sale and leaseback transaction or Capital Lease Obligation, in each case, otherwise permitted by this Indenture, but only on the assets subject to such transaction or lease and only to the extent that such restrictions or encumbrances are customary with respect to a sale and leaseback transaction or capital lease; and
(15) customary provisions in intellectual property agreements, licenses and leases and other similar agreements entered into in the ordinary course of business.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Parent shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to do any of the following: (1a)(i) pay dividends or make any other distributions to the Parent or any Restricted Subsidiary on its Capital Stock or (ii) pay any Financial Indebtedness owed to Loral Space the Parent or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space or any of its Restricted Subsidiaries;
Subsidiary; (2b) make loans or advances to Loral Space the Parent or any of its Restricted Subsidiaries; or
Subsidiary or (3c) transfer any of its properties or assets to Loral Space the Parent or any of its Restricted Subsidiaries.
(b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to Subsidiary, except for such encumbrances or restrictions existing under or by reason of:
of (1) agreements governing Credit Facilities or Existing Indebtedness as in effect on the Issue Date Indebtedness, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; , provided that such agreements and amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement replacements or refinancings are no more restrictivenot materially less favorable to the holders of the Notes, taken as a whole, with respect to such dividend and other payment restrictions than those contained contained, in the case of Credit Facilities, in agreements governing Credit Facilities or, in the case of Existing Indebtedness, in agreements governing such Existing Indebtedness, in either case as in effect on the Issue Date;
date of this Indenture, (2) this Indenture, the Notes and the Note Guarantees, (3) any customary (as conclusively determined agreement for the sale or other disposition of Equity Interests in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement restricts distributions by that Restricted Subsidiary pending the sale or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause other disposition, (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5) applicable law;
(6) any instrument governing Financial Indebtedness or Capital Stock of a Person acquired by Loral Space the Parent or any of its Restricted Subsidiaries Subsidiary as in effect at the time of such acquisition (except to the extent such Financial Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; , provided that, in 22 the case of Financial Indebtedness, such Financial Indebtedness was permitted by the terms of this Guaranty Indenture to be incurred;
, (75) by reason of customary non-provisions restricting the subletting or assignment provisions in leases entered into in of any lease or the ordinary course transfer of business and consistent with past practices;
copyrighted or patented materials, (8) 6) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3c) of paragraph above on the property so acquired, (a7) of this Section 4.08;
(9) any agreement customary provisions in agreements for the sale of property or other disposition assets, (8) customary provisions in agreements that restrict the assignment of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale such agreements or other disposition;
rights thereunder, (10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(129) provisions with respect to the disposition or distribution of assets or property in any joint venture agreementsagreement, assets sale agreementsagreement, stock sale agreements and agreement or other similar agreements agreement in each case entered into in the ordinary course of business; and
(13) restrictions on cash , but in each case only to the extent such encumbrance or other deposits restriction relates to the transfer of the property, or net worth imposed by customers under contracts entered into in encumbers or restricts the ordinary course of business.assets, subject to such agreement,
Appears in 1 contract
Sources: Indenture (CGG Marine B.V.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Issuer shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) (A) pay dividends or make any other distributions on its Capital Stock to Loral Space the Issuer or any of its Restricted Subsidiaries, Subsidiaries on its Capital Stock or with respect to any other interest or participation in, or measured by, its profitsprofits (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock), or (B) pay any indebtedness Indebtedness owed to Loral Space the Issuer or any of its Restricted Subsidiaries;
(2) make loans or advances to Loral Space the Issuer or any of its Restricted SubsidiariesSubsidiaries (it being understood that the subordination of loans or advances made to the Issuer or any Restricted Subsidiary to other Indebtedness incurred by the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer sell, assign, transfer, lease, convey or otherwise dispose of any of its properties or assets to Loral Space the Issuer or any of its Restricted Subsidiaries.,
(b) The restrictions set forth in paragraph (aSection 3.4(a) of this Section 4.08 shall not apply (in each case) to encumbrances or restrictions existing under or by reason of:
(1i) Existing Indebtedness as contractual encumbrances or restrictions contained in the Senior Secured Credit Facilities and the related documentation and related Hedging Obligations and Cash Management Obligations or any other agreement or instrument in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements at or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect entered into on the Issue Date;
(2ii) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided thatthis Indenture, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors(including any exchange notes and related guarantees);
(5iii) applicable lawpurchase money obligations, mortgage financings, Capitalized Lease Obligations and similar obligations permitted under the Indenture that impose restrictions of the nature discussed in Section 3.4(a) on the property acquired, financed, designed, leased, constructed, repaired, maintained, installed or improved in connection therewith or thereby (including any proceeds thereof, accessions thereto and any upgrades or improvements thereto);
(6iv) applicable law or any applicable rule, regulation, order, authorization, permit or license;
(v) any agreement or other instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space the Issuer or any of its Restricted Subsidiaries as Subsidiary in effect existence at the time of such acquisition (except to or at the extent such Indebtedness was incurred time it merges with or into the Issuer or any Restricted Subsidiary or is assumed in connection with or the acquisition of assets from such Person (but, in each case, not created in contemplation of such acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Personsuch Person and its Subsidiaries, or the property or assets of the Personsuch Person and its Subsidiaries, so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty to be incurredacquired (including their respective after-acquired assets);
(7vi) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
(8) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08;
(9) any agreement contracts for the sale or other disposition of assets, including customary restrictions with respect to a Restricted Subsidiary of the Issuer pursuant to an agreement that restricts distributions by that Restricted Subsidiary pending its has been entered into for the sale or other dispositiondisposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(10vii) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Secured Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness otherwise permitted to be incurred pursuant to Section 3.2 and 3.6 that limit the right of the debtor to dispose of the assets securing such Indebtedness or subject to such LienLiens;
(12viii) restrictions on Cash Equivalents or other deposits or net worth imposed by customers, suppliers and landlords under contracts entered into in the ordinary course of business or as required by insurance surety or bonding companies;
(ix) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreementsagreements or arrangements, assets sale agreements, stock sale limited liability company agreements and other similar agreements relating solely to such joint venture; provided that with respect to any joint venture agreement relating to a Restricted Subsidiary, such provisions are not materially more disadvantageous to the Holders than is customary in comparable agreements or arrangements as determined in Good Faith by the Issuer;
(x) customary (as determined in Good Faith by the Issuer) provisions contained in leases, subleases, licenses, sublicenses or other agreements, in each case, entered into in the ordinary course of business;
(xi) any agreement or instrument relating to any Indebtedness or Preferred Stock of a Restricted Subsidiary permitted to be incurred subsequent to the Issue Date pursuant to Section 3.2 if (A) such encumbrances and restrictions, when taken as a whole, are either (x) not materially more disadvantageous to the Holders than is customary in comparable financings or (y) not materially more disadvantageous to the Holders than those applicable in either the Indenture or the Senior Secured Credit Facilities as in effect on the Issue Date, in each case, as determined by the Issuer in Good Faith, and (B) either (x) the Issuer determines in Good Faith that such encumbrance or restriction will not adversely affect the Issuer’s ability to make principal and interest payments on the Notes as and when they come due or (y) such encumbrances and restrictions apply only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Indebtedness;
(xii) covenants to maintain net worth, total assets or liquidity and similar financial responsibility covenants under contracts with customers or suppliers in the ordinary course of business; and
(13xiii) any such encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xii) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the ordinary course good faith judgment of businessthe Issuer, not materially more restrictive with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Sources: Indenture (Crown Media Holdings Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (1i)(a) pay dividends or make any other distributions on its Capital Stock to Loral Space the Company or any of its Restricted Subsidiaries, Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (b) pay any indebtedness owed to Loral Space the Company or any of its Restricted Subsidiaries;
, (2ii) make loans or advances to Loral Space the Company or any of its Restricted Subsidiaries; or
Subsidiaries or (3iii) transfer any of its properties or assets to Loral Space the Company or any of its Restricted Subsidiaries.
(b) The . However, the foregoing restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
of (1a) Existing Indebtedness as in effect on the Issue Date Date, (b) this Indenture and the Notes, and Indebtedness ranking pari passu with the Notes provided such provisions are no more restrictive than the Notes (c) the Credit Agreement and any amendmentsForeign Subsidiary Credit Agreement, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings the restrictions contained in the Credit Agreement are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in a credit agreement with terms that are commercially reasonable for a borrower that has substantially comparable Indebtedness and provided, further, that no such Existing Indebtedness, as provision in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on shall prohibit or restrict the Issue Date and ability of any amendmentsRestricted Subsidiary to pay dividends or make other upstream distributions or other payments to the Company or any of its Restricted Subsidiaries, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5d) applicable law;
, (6e) any instrument governing Indebtedness or Capital Stock of a Person or assets acquired by Loral Space the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided thatprovided, that in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty the Indenture to be incurred;
, (7f) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
, (8) g) purchase money obligations (including pursuant to Purchase Money Indebtedness obligations) for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3iii) of paragraph above on the property so acquired, constructed, leased or improved, (a) of this Section 4.08;
(9h) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
, provided that the consummation of such transaction would not result in an Event of Default or an event that, with the passing of time or giving of notice or both, would constitute an Event of Default, that such restriction terminates if such transaction is not consummated and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into, (10i) Permitted Refinancing Indebtedness; , provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being extended, refinanced;
, renewed, replaced, defeased or refunded, (11j) Liens securing Indebtedness otherwise permitted to be incurred pursuant to Section 4.12 hereof that limit the right of the debtor Company or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
, (12k) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
, and (13l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create 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 to Loral Space or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space or any of its Restricted Subsidiaries;
(2) make loans or advances to Loral Space or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to Loral Space or any of its Restricted Subsidiaries.
(b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5) applicable law;
(6) any instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty to be incurred;
(7) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
(8) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08;
(9) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(12) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
(13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Operating Partnership shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on its any Capital Stock to Loral Space of such Restricted Subsidiary owned by the Operating Partnership or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space or any of its the Restricted Subsidiaries;
(2) make loans pay any Indebtedness or advances other obligations owed to Loral Space the Operating Partnership or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to Loral Space or any of its Restricted Subsidiaries.
(b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) make loans or advances to the Operating Partnership or any other Restricted Subsidiary; or
(4) transfer any of its property or assets to the Operating Partnership or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.08(a) hereof shall not apply to encumbrances or restrictions:
(1) in this Indenture, the Notes, the Note Guarantees, the Existing Credit Agreement as Facilities, the Existing Equipment Loan and any other agreement in effect on the Issue Date as the same are in effect on the Issue Date, and any amendmentsextensions, modificationsrefinancings, restatements, renewals, increases, supplements, refundings, renewals or replacements or refinancings thereofof such agreements; provided that the encumbrances and restrictions in any such amendmentsextensions, modificationsrefinancings, restatements, renewals, increases, supplements, refundings, replacement renewals or refinancings replacements are no more restrictiveless favorable in any material respect, taken as a whole, with respect to such dividend and other payment restrictions the Holders of the Notes than those contained in encumbrances or restrictions that are being extended, refinanced, renewed or replaced;
(2) imposed under any applicable documents or instruments pertaining to any current or future Secured Indebtedness permitted under this Indenture (and relating solely to assets constituting collateral thereunder or cash proceeds from or generated by such Credit Agreementassets);
(3) existing under or by reason of applicable law, as in effect on the Issue Daterule, regulation or order of any governmental authority or order of any court;
(4) on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into the Loral Space Indenture and the notes issued thereunderordinary course of business, this Guaranty and the Notes and the Guarantees of the Notes including such restrictions imposed by the Subsidiary Guarantorscustomers or insurance, surety or bonding companies;
(5) applicable lawwith respect to a Foreign Subsidiary, entered into the ordinary course of business or pursuant to the terms of Indebtedness of a Foreign Subsidiary that was Incurred by such Foreign Subsidiary in compliance with the terms of this Indenture;
(6) contained in any instrument governing Indebtedness license, permit or Capital Stock other accreditation with a regulatory authority entered into the ordinary course of business;
(7) which prohibit the payment or making of dividends or other distributions other than on a pro rata basis;
(8) existing with respect to any Person or the property or assets of any Person acquired by Loral Space the Operating Partnership or any of its Restricted Subsidiaries as in effect Subsidiary, existing at the time of such acquisition (except to the extent such Indebtedness was and not incurred in connection with contemplation thereof or in contemplation of such acquisition)connection therewith, which encumbrance encumbrances or restriction is restrictions are not applicable to any Person, Person or the properties property or assets of any Person, Person other than the Person, Person so acquired or the property or assets of the Person, Person so acquired; provided that, ;
(9) in 22 the case of Indebtednessclause (4) of Section 4.08(a) hereof:
(A) that restrict in a customary manner the subletting, such Indebtedness was permitted by the terms assignment or transfer of this Guaranty to be incurredany property or asset that is a lease, license, conveyance or contract or similar property or asset;
(7B) customary non-assignment provisions in leases entered into in existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the ordinary course of business and consistent with past practicesOperating Partnership or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(8) C) existing under or by reason of Capitalized Leases or purchase money obligations for property acquired in the ordinary course of business that impose restrictions on such property; or
(D) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property so acquired or assets of the nature described Operating Partnership or any Restricted Subsidiary in clause (3) of paragraph (a) of this Section 4.08any manner material to the Operating Partnership and the Restricted Subsidiaries taken as a whole;
(910) any with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or other disposition of a all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that restricts (including a restriction on distributions by that such Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced);
(11) Liens securing contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if the Operating Partnership determines that limit any such encumbrance or restriction shall not materially affect the right of Operating Partnership’s ability to make principal or interest payments on the debtor to dispose of the assets subject to such LienNotes;
(12) provisions with respect to the disposition existing under or distribution by reason of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
(13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(13) customary provisions contained in joint venture agreements and customary provisions in leases, in each case entered into in the ordinary course of business;
(14) any encumbrance or restriction existing under or by reason of Indebtedness or other contractual requirements of a Receivables Entity in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(15) by reason of customary nonassignment provisions in leases, licenses and other similar agreements entered into in the ordinary course of business;
(16) customary restrictions in asset or Capital Stock sale agreements or joint venture or other similar agreements limiting transfer of such assets or Capital Stock pending the closing of such sale or subject to the joint venture; or
(17) in connection with and pursuant to permitted extensions, refinancings, renewals or replacements of restrictions imposed pursuant to clauses (1) through (16) of this Section 4.08(b); provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect, taken as a whole, to the Holders than those encumbrances or restrictions that are being extended, refinanced, renewed or replaced. Nothing contained in this Section 4.08 shall prevent the Operating Partnership or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Operating Partnership or the Restricted Subsidiaries that secure Indebtedness of the Operating Partnership or any of the Restricted Subsidiaries. For purposes of determining compliance with this Section 4.08, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or distributions being paid on Common Stock shall not be deemed a restriction on the ability to pay dividends or make any other distributions on Capital Stock, and (2) the subordination of loans or advances made to a Restricted Subsidiary to other Indebtedness Incurred by such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (QTS Realty Trust, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space shall Borrower will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create 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 to Loral Space Borrower or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness Indebtedness owed to Loral Space Borrower or any of its Restricted Subsidiaries;
(2) make loans or advances to Loral Space Borrower or any of its Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to Loral Space Borrower or any of its Restricted Subsidiaries.
(b) The restrictions set forth in paragraph (aSection 6.02(a) of this Section 4.08 shall will not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing the Loan Documents (including the Intercreditor Agreements);
(2) agreements governing other Indebtedness as in effect on permitted to be incurred under the Issue Date provisions of Section 6.03 and any amendments, restatements, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereofof those agreements; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictivethe restrictions therein, taken as a whole, with respect to such dividend and other payment restrictions either (i) are not materially more restrictive than those contained in such Existing Indebtedness, as agreements governing Indebtedness in effect on the Issue Closing Date;
, or (2ii) any are not materially more disadvantageous to Lenders than is customary in comparable financings (as conclusively determined by Borrower in good faith by faith) and, in the Chief Financial Officer case of Loral Spaceclause (ii) above, either (x) Borrower determines (in good faith) at the time of entry into such agreement that such encumbrance or restriction applicable will not affect Borrower’s ability to Loral Space make principal or interest payments under this Agreement or (y) such encumbrances or restrictions apply only during the continuance of a default in respect of payment or a Restricted Subsidiary that is contained in an agreement or instrument governing or financial maintenance covenant relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements applicable Law or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Daterequirement;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5) applicable law;
(6) any instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness instrument was incurred entered into in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty Agreement to be incurred;
(75) customary non-assignment provisions in leases entered into in contracts, leases, sub-leases, licenses or asset sale agreements otherwise permitted by this Agreement so long as such restrictions relate to the ordinary course of business and consistent with past practicesproperty interest, rights or assets subject thereto;
(8) 6) purchase money obligations for property acquired in the ordinary course of business obligations, mortgage financings and Capital Lease Obligations that impose restrictions on the property so acquired purchased or leased of the nature described in clause (3) of paragraph (a) of this Section 4.086.03(b)(4);
(97) contracts for the sale of assets, including any agreement for the sale or other disposition of a Restricted Subsidiary of all or substantially all of the assets of such Restricted Subsidiary in compliance with the terms of this Agreement that restricts distributions by that such Restricted Subsidiary pending its such sale or other disposition;
(10) Permitted 8) Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no (i) not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinancedrefinanced or (ii) are not materially more disadvantageous to the Lenders than is customary in comparable financings (as determined by Borrower in good faith) and in the case of clause (ii) such encumbrances or restrictions apply only during the continuance of a default in respect of payment or a financial maintenance covenant relating to such Indebtedness;
(119) Secured Indebtedness otherwise permitted to be incurred pursuant to Section 6.03 and Liens securing Indebtedness permitted to be incurred pursuant to Section 6.05 that limit the right of the debtor to dispose of the assets subject to such LienLiens;
(1210) provisions with respect to limiting the disposition or distribution of assets or property in joint venture agreements, assets asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitation is applicable only to the ordinary course assets that are the subject of business; andsuch agreements;
(1311) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(12) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(13) any Restricted Investment not prohibited by Section 6.01 and any Permitted Investment;
(14) restrictions created in connection with any Qualified Securitization Transaction or Qualified Receivables/Equipment Facility that, in the good faith determination of Borrower, are necessary or advisable to effect such Qualified Securitization Transaction or Qualified Receivables/Equipment Facility;
(15) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of Borrower that is incurred by a Foreign Subsidiary of Borrower subsequent to the Closing Date pursuant to Section 6.03 that imposes restrictions solely on the Foreign Subsidiary party thereto or its Subsidiaries;
(16) any encumbrances or restrictions of the type referred to in Section 6.02(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in Sections 6.02(b)(1) through 6.02(b)(15); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of Borrower, no more restrictive as a whole with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing;
(17) any encumbrance or other restriction that will not otherwise materially impair Borrower’s ability to make payments on the Obligations when due, in the good faith judgment of Borrower; and
(18) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, arrangement, amalgamation or consolidation of an Unrestricted Subsidiary into Borrower or a Restricted Subsidiary or the transfer of all or substantially all of the assets of an Unrestricted Subsidiary to Borrower or a Restricted Subsidiary, any agreement or other instrument of such Unrestricted Subsidiary (but, in any such case, not created in contemplation of such redesignation, merger, arrangement, amalgamation, consolidation or transfer).
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Operating Partnership shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on its any Capital Stock to Loral Space of such Restricted Subsidiary owned by the Operating Partnership or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space or any of its the Restricted Subsidiaries;
(2) make loans pay any Indebtedness or advances other obligations owed to Loral Space the Operating Partnership or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to Loral Space or any of its Restricted Subsidiaries.
(b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) make loans or advances to the Operating Partnership or any other Restricted Subsidiary; or
(4) transfer any of its property or assets to the Operating Partnership or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.08(a) hereof shall not apply to encumbrances or restrictions:
(1) in this Indenture, the Notes, the Note Guarantees, the Existing Credit Agreement as Facility and any other agreement in effect on the Issue Date as the same are in effect on the Issue Date, and any amendmentsextensions, modificationsrefinancings, restatements, renewals, increases, supplements, refundings, renewals or replacements or refinancings thereofof such agreements; provided that the encumbrances and restrictions in any such amendmentsextensions, modificationsrefinancings, restatements, renewals, increases, supplements, refundings, replacement renewals or refinancings replacements are no more restrictiveless favorable in any material respect, taken as a whole, with respect to such dividend and other payment restrictions the Holders of the Notes than those contained in encumbrances or restrictions that are being extended, refinanced, renewed or replaced;
(2) imposed under any applicable documents or instruments pertaining to any current or future Secured Indebtedness permitted under this Indenture (and relating solely to assets constituting collateral thereunder or cash proceeds from or generated by such Credit Agreementassets);
(3) existing under or by reason of applicable law, as in effect on the Issue Daterule, regulation or order of any governmental authority or order of any court;
(4) on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into the Loral Space Indenture and the notes issued thereunderordinary course of business, this Guaranty and the Notes and the Guarantees of the Notes including such restrictions imposed by the Subsidiary Guarantorscustomers or insurance, surety or bonding companies;
(5) applicable lawwith respect to a Foreign Subsidiary, entered into the ordinary course of business or pursuant to the terms of Indebtedness of a Foreign Subsidiary that was Incurred by such Foreign Subsidiary in compliance with the terms of this Indenture;
(6) contained in any instrument governing Indebtedness license, permit or Capital Stock other accreditation with a regulatory authority entered into the ordinary course of business;
(7) which prohibit the payment or making of dividends or other distributions other than on a pro rata basis;
(8) existing with respect to any Person or the property or assets of any Person acquired by Loral Space the Operating Partnership or any of its Restricted Subsidiaries as in effect Subsidiary, existing at the time of such acquisition (except to the extent such Indebtedness was and not incurred in connection with contemplation thereof or in contemplation of such acquisition)connection therewith, which encumbrance encumbrances or restriction is restrictions are not applicable to any Person, Person or the properties property or assets of any Person, Person other than the Person, Person so acquired or the property or assets of the Person, Person so acquired; provided that, ;
(9) in 22 the case of Indebtednessclause (4) of Section 4.08(a) hereof:
(A) that restrict in a customary manner the subletting, such Indebtedness was permitted by the terms assignment or transfer of this Guaranty to be incurredany property or asset that is a lease, license, conveyance or contract or similar property or asset;
(7B) customary non-assignment provisions in leases entered into in existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the ordinary course of business and consistent with past practicesOperating Partnership or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(8) C) existing under or by reason of Finance Leases or purchase money obligations for property acquired in the ordinary course of business that impose restrictions on such property; or
(D) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property so acquired or assets of the nature described Operating Partnership or any Restricted Subsidiary in clause (3) of paragraph (a) of this Section 4.08any manner material to the Operating Partnership and the Restricted Subsidiaries taken as a whole;
(910) any with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or other disposition of a all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that restricts (including a restriction on distributions by that such Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced);
(11) Liens securing contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if the Operating Partnership determines that limit any such encumbrance or restriction shall not materially affect the right of Operating Partnership’s ability to make principal or interest payments on the debtor to dispose of the assets subject to such LienNotes;
(12) provisions with respect to the disposition existing under or distribution by reason of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
(13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(13) customary provisions contained in joint venture agreements and customary provisions in leases, in each case entered into in the ordinary course of business;
(14) any encumbrance or restriction existing under or by reason of Indebtedness or other contractual requirements of a Receivables Entity in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(15) by reason of customary nonassignment provisions in leases, licenses and other similar agreements entered into in the ordinary course of business;
(16) customary restrictions in asset or Capital Stock sale agreements or joint venture or other similar agreements limiting transfer of such assets or Capital Stock pending the closing of such sale or subject to the joint venture;
(17) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of such Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the REIT or any other Restricted Subsidiary;
(18) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement entered into in the ordinary course of business, provided such agreement restricts the encumbrance of solely the property or assets that are the subject of such agreement, the payment rights thereunder or the proceeds thereof;
(19) contained in any organizational documents of a REIT Subsidiary that are intended to ensure such REIT Subsidiary’s compliance with requirements for qualification as a real estate investment trust under the Code; or
(20) in connection with and pursuant to permitted extensions, refinancings, renewals or replacements of restrictions imposed pursuant to clauses (1) through (19) of this Section 4.08(b); provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect, taken as a whole, to the Holders than those encumbrances or restrictions that are being extended, refinanced, renewed or replaced.
(c) Nothing contained in this Section 4.08 shall prevent the Operating Partnership or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Operating Partnership or the Restricted Subsidiaries that secure Indebtedness of the Operating Partnership or any of the Restricted Subsidiaries. For purposes of determining compliance with this Section 4.08, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or distributions being paid on Common Stock shall not be deemed a restriction on the ability to pay dividends or make any other distributions on Capital Stock, and (2) the subordination of loans or advances made to a Restricted Subsidiary to other Indebtedness Incurred by such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (QualityTech, LP)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (1i)(a) pay dividends or make any other distributions on its Capital Stock to Loral Space the Company or any of its Restricted Subsidiaries, Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (b) pay any indebtedness owed to Loral Space the Company or any of its Restricted Subsidiaries;
, (2ii) make loans or advances to Loral Space the Company or any of its Restricted Subsidiaries; or
Subsidiaries or (3iii) transfer any of its properties or assets to Loral Space the Company or any of its Restricted Subsidiaries.
(b) The . However, the foregoing restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
of (1a) Existing Indebtedness as in effect on the Issue Date Date, (b) this Indenture, the Notes and the Exchange Notes, and Indebtedness ranking PARI PASSU with the Notes provided such provisions are no more restrictive than the Notes (c) the Credit Agreement and any amendmentsForeign Subsidiary Credit Agreement, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided PROVIDED that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings the restrictions contained in the Credit Agreement are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in a credit agreement with terms that are commercially reasonable for a borrower that has substantially comparable Indebtedness and PROVIDED, FURTHER, that no such Existing Indebtedness, as provision in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on shall prohibit or restrict the Issue Date and ability of any amendmentsRestricted Subsidiary to pay dividends or make other upstream distributions or other payments to the Company or any of its Restricted Subsidiaries, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5d) applicable law;
, (6e) any instrument governing Indebtedness or Capital Stock of a Person or assets acquired by Loral Space the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided thatPROVIDED, that in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty the Indenture to be incurred;
, (7f) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
, (8) g) purchase money obligations (including pursuant to Purchase Money Indebtedness obligations) for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3iii) of paragraph above on the property so acquired, constructed, leased or improved, (a) of this Section 4.08;
(9h) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
, PROVIDED that the consummation of such transaction would not result in an Event of Default or an event that, with the passing of time or giving of notice or both, would constitute an Event of Default, that such restriction terminates if such transaction is not consummated and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into, (10i) Permitted Refinancing Indebtedness; provided , PROVIDED that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being extended, refinanced;
, renewed, replaced, defeased or refunded, (11j) Liens securing Indebtedness otherwise permitted to be incurred pursuant to Section 4.12 hereof that limit the right of the debtor Company or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
, (12k) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
, and (13l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Operating Partnership shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on its any Capital Stock to Loral Space of such Restricted Subsidiary owned by the Operating Partnership or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space or any of its the Restricted Subsidiaries;
(2) make loans pay any Indebtedness or advances other obligations owed to Loral Space the Operating Partnership or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to Loral Space or any of its Restricted Subsidiaries.
(b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) make loans or advances to the Operating Partnership or any other Restricted Subsidiary; or
(4) transfer any of its property or assets to the Operating Partnership or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.08(a) hereof shall not apply to encumbrances or restrictions:
(1) in this Indenture, the Notes, the Note Guarantees, the Existing Credit Agreement as Facility and any other agreement in effect on the Issue Date as the same are in effect on the Issue Date, and any amendmentsextensions, modificationsrefinancings, restatements, renewals, increases, supplements, refundings, renewals or replacements or refinancings thereofof such agreements; provided that the encumbrances and restrictions in any such amendmentsextensions, modificationsrefinancings, restatements, renewals, increases, supplements, refundings, replacement renewals or refinancings replacements are no more restrictiveless favorable in any material respect, taken as a whole, with respect to such dividend and other payment restrictions the Holders of the Notes than those contained in encumbrances or restrictions that are being extended, refinanced, renewed or replaced;
(2) imposed under any applicable documents or instruments pertaining to any current or future Secured Indebtedness permitted under this Indenture (and relating solely to assets constituting collateral thereunder or cash proceeds from or generated by such Credit Agreementassets);
(3) existing under or by reason of applicable law, as in effect on the Issue Daterule, regulation or order of any governmental authority or order of any court;
(4) on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into the Loral Space Indenture and the notes issued thereunderordinary course of business, this Guaranty and the Notes and the Guarantees of the Notes including such restrictions imposed by the Subsidiary Guarantorscustomers or insurance, surety or bonding companies;
(5) applicable lawwith respect to a Foreign Subsidiary, entered into the ordinary course of business or pursuant to the terms of Indebtedness of a Foreign Subsidiary that was Incurred by such Foreign Subsidiary in compliance with the terms of this Indenture;
(6) contained in any instrument governing Indebtedness license, permit or Capital Stock other accreditation with a regulatory authority entered into the ordinary course of business;
(7) which prohibit the payment or making of dividends or other distributions other than on a pro rata basis;
(8) existing with respect to any Person or the property or assets of any Person acquired by Loral Space the Operating Partnership or any of its Restricted Subsidiaries as in effect Subsidiary, existing at the time of such acquisition (except to the extent such Indebtedness was and not incurred in connection with contemplation thereof or in contemplation of such acquisition)connection therewith, which encumbrance encumbrances or restriction is restrictions are not applicable to any Person, Person or the properties property or assets of any Person, Person other than the Person, Person so acquired or the property or assets of the Person, Person so acquired; provided that, ;
(9) in 22 the case of Indebtednessclause (4) of Section 4.08(a) hereof:
(A) that restrict in a customary manner the subletting, such Indebtedness was permitted by the terms assignment or transfer of this Guaranty to be incurredany property or asset that is a lease, license, conveyance or contract or similar property or asset;
(7B) customary non-assignment provisions in leases entered into in existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the ordinary course of business and consistent with past practicesOperating Partnership or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(8) C) existing under or by reason of Capitalized Leases or purchase money obligations for property acquired in the ordinary course of business that impose restrictions on such property; or
(D) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property so acquired or assets of the nature described Operating Partnership or any Restricted Subsidiary in clause (3) of paragraph (a) of this Section 4.08any manner material to the Operating Partnership and the Restricted Subsidiaries taken as a whole;
(910) any with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or other disposition of a all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that restricts (including a restriction on distributions by that such Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced);
(11) Liens securing contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if the Operating Partnership determines that limit any such encumbrance or restriction shall not materially affect the right of Operating Partnership’s ability to make principal or interest payments on the debtor to dispose of the assets subject to such LienNotes;
(12) provisions with respect to the disposition existing under or distribution by reason of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
(13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(13) customary provisions contained in joint venture agreements and customary provisions in leases, in each case entered into in the ordinary course of business;
(14) any encumbrance or restriction existing under or by reason of Indebtedness or other contractual requirements of a Receivables Entity in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(15) by reason of customary nonassignment provisions in leases, licenses and other similar agreements entered into in the ordinary course of business;
(16) customary restrictions in asset or Capital Stock sale agreements or joint venture or other similar agreements limiting transfer of such assets or Capital Stock pending the closing of such sale or subject to the joint venture;
(17) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of such Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the REIT or any other Restricted Subsidiary;
(18) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement entered into in the ordinary course of business, provided such agreement restricts the encumbrance of solely the property or assets that are the subject of such agreement, the payment rights thereunder or the proceeds thereof; or
(19) in connection with and pursuant to permitted extensions, refinancings, renewals or replacements of restrictions imposed pursuant to clauses (1) through (18) of this Section 4.08(b); provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect, taken as a whole, to the Holders than those encumbrances or restrictions that are being extended, refinanced, renewed or replaced. Nothing contained in this Section 4.08 shall prevent the Operating Partnership or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Operating Partnership or the Restricted Subsidiaries that secure Indebtedness of the Operating Partnership or any of the Restricted Subsidiaries. For purposes of determining compliance with this Section 4.08, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or distributions being paid on Common Stock shall not be deemed a restriction on the ability to pay dividends or make any other distributions on Capital Stock, and (2) the subordination of loans or advances made to a Restricted Subsidiary to other Indebtedness Incurred by such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (QualityTech, LP)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (1i)(a) pay dividends or make any other distributions on its Capital Stock to Loral Space the Company or any of its Restricted Subsidiaries, Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (b) pay any indebtedness owed to Loral Space the Company or any of its Restricted Subsidiaries;
, (2ii) make loans or advances to Loral Space the Company or any of its Restricted Subsidiaries; or
Subsidiaries or (3iii) transfer any of its properties or assets to Loral Space the Company or any of its Restricted Subsidiaries.
(b) The . However, the foregoing restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
of (1a) Existing Indebtedness as in effect on the Issue Date Date, (b) this Indenture and the Notes, and Indebtedness ranking pari passu with the Notes provided such provisions are no more restrictive than the Notes, (c) the Credit Agreement and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereofForeign Subsidiary Credit Agreement; provided PROVIDED that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings the restrictions contained in the Credit Agreement are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in a credit agreement with terms that are commercially reasonable for a borrower that has substantially comparable Indebtedness; and PROVIDED, FURTHER, that no such Existing Indebtedness, as provision in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on shall prohibit or restrict the Issue Date and ability of any amendmentsRestricted Subsidiary to pay dividends or make other upstream distributions or other payments to the Company or any of its Restricted Subsidiaries, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5d) applicable law;
, (6e) any instrument governing Indebtedness or Capital Stock of a Person or assets acquired by Loral Space the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, PROVIDED that in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty the Indenture to be incurred;
, (7f) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
, (8) g) purchase money obligations (including pursuant to Purchase Money Indebtedness obligations) for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3iii) of paragraph above on the property so acquired, constructed, leased or improved, (a) of this Section 4.08;
(9h) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
; PROVIDED that the consummation of such transaction would not result in an Event of Default or an event that, with the passing of time or giving of notice or both, would constitute an Event of Default, that such restriction terminates if such transaction is not consummated and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into, (10i) Permitted Refinancing Indebtedness; provided PROVIDED that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being extended, refinanced;
, renewed, replaced, defeased or refunded, (11j) Liens securing Indebtedness otherwise permitted to be incurred pursuant to Section 5.11 hereof that limit the right of the debtor Company or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
, (12k) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
, and (13l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock to Loral Space the Issuer or any of its Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness Indebtedness owed to Loral Space the Issuer or any of its Restricted SubsidiariesGuarantor;
(2ii) make loans or advances to Loral Space the Issuer or any of its Restricted SubsidiariesSubsidiary; or
(3iii) sell, lease or transfer any of its properties or assets to Loral Space the Issuer or any Restricted Subsidiary; provided that (x) the priority of its 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 period to) loans or advances made to the Issuer or any Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Issuer or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) The restrictions set forth in paragraph (aprovisions of Section 4.16(a) of this Section 4.08 above shall not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing Indebtedness (including Existing Indebtedness Indebtedness), charter documents and shareholder agreement as in effect on the Issue Date and any amendments, restatements, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereofof those agreements; provided that such the amendments, restatements, modifications, restatements, renewals, increases, supplements, refundings, replacement replacements or refinancings are no more restrictivenot materially less favorable to the holders of the Notes, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect those agreements on the Issue Date;
(2) any customary Date (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired DebtIssuer), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3ii) this Indenture, the Credit Agreement as in effect on Notes, the Issue Date Note Guarantees and the Security Documents;
(iii) agreements governing other Indebtedness permitted to be incurred under Section 4.06 and any amendments, restatements, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereofof those agreements; provided that the restrictions therein are not materially less favorable to the holders of the Notes than is customary in comparable financings (as determined in good faith by the Issuer) and the Issuer determines at the time of the incurrence of such amendmentsIndebtedness that such encumbrances or restrictions will not adversely effect, modificationsin any material respect, restatements, renewals, increases, supplements, refundings, replacement the Issuer’s ability to make principal or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect interest payments on the Issue DateNotes;
(4iv) applicable law, rule, regulation or order or the Loral Space Indenture and the notes issued thereunderterms of any license, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantorsauthorization, concession or permit;
(5) applicable law;
(6v) any instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space the Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty Indenture to be incurred;
(7vi) customary non-assignment and similar provisions in contracts, leases and licenses entered into in the ordinary course of business and consistent with past practicesbusiness;
(8) vii) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property so acquired purchased or leased of the nature described set forth in clause (3) of paragraph (a) of this Section 4.084.16(a)(iii);
(9viii) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(10ix) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11x) Liens securing Indebtedness permitted to be incurred under Section 4.07 that limit the right of the debtor to dispose of the assets subject to such LienLiens;
(12xi) provisions with respect to limiting the disposition or distribution of assets or property in joint venture agreements, assets asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the ordinary course approval of business; andthe Issuer’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(13xii) restrictions on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under contracts entered into in the ordinary course of business;
(xiii) any customary Productive Asset Leases for Vessels and other assets used in the ordinary course of business; provided that such encumbrance or restriction only extends to the Vessel or other asset financed in such Productive Asset Lease;
(xiv) any Restricted Investment not prohibited by Section 4.08 and any Permitted Investment;
(xv) any encumbrance or restriction existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of this Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person other than such Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary; provided that the encumbrances or restrictions are customary for the business of such Unrestricted Subsidiary and would not, at the time agreed to, be expected (as determined in good faith by the Issuer) to affect the ability of the Issuer and the Guarantors to make payments under the Notes, the Note Guarantees and this Indenture, as applicable;
(xvi) customary encumbrances or restrictions contained in agreements in connection with Hedging Obligations and Cash Management Obligations permitted under this Indenture; and
(xvii) any encumbrance or restriction existing under any agreement that extends, renews, refinances, replaces, amends, modifies, restates or supplements the agreements containing the encumbrances or restrictions in the foregoing clauses (i) through (xvi), or in this clause (xvii); provided that the terms and conditions of any such encumbrances or restrictions are no more restrictive in any material respect than those under or pursuant to the agreement so extended, renewed, refinanced, replaced, amended, modified, restated or supplemented.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Issuer shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create 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 to Loral Space the Issuer or any of its Restricted Subsidiaries, Subsidiaries (a) on its Capital Stock or (b) with respect to any other interest or participation in, or measured by, its profits, or ;
(2) pay any indebtedness Indebtedness owed to Loral Space the Issuer or any of its Restricted Subsidiaries;
(23) make loans or advances to Loral Space the Issuer or any of its Restricted Subsidiaries; or
(34) sell, lease or transfer any of its properties or assets to Loral Space the Issuer or any of its Restricted Subsidiaries.
(b) The However, the preceding restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as agreements in effect on the Issue Date date of this Indenture and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; of those agreements, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement the encumbrances or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictiverefinancings, taken as a whole, with respect to such dividend and other payment are not materially more restrictive than the encumbrances or restrictions than those contained in such Credit Agreement, as agreements in effect place on the Issue Datedate of this Indenture;
(2) Credit Facilities pursuant to which Indebtedness permitted to be Incurred by clause (b)(1) of Section 4.09 hereof is Incurred, provided that the encumbrances or restrictions contained in any Credit Facilities, taken as a whole, are not materially more restrictive than encumbrances or restrictions customarily contained in credit facilities of Persons with a credit rating similar to that of the Issuer; and provided further that the Board of Directors of the Issuer determined in good faith that such restrictions do not materially and adversely affect the Issuer’s ability to make payments of principal of and interest on the Notes;
(3) the Second Priority Obligations;
(4) the Loral Space Indenture and the notes issued thereunderthis Indenture, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary GuarantorsNote Guarantees;
(5) any applicable law, rule, regulation or order;
(6) any agreement or instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space or any of its Restricted Subsidiaries as in effect at the time such Person becomes a Subsidiary of the Issuer or at the time it merges with or into the Issuer or any of its Restricted Subsidiaries or assumed in connection with the acquisition of assets from such acquisition Person (except to the extent such Indebtedness or Capital Stock was incurred Incurred in connection with or in contemplation of such Person becoming a Subsidiary or such acquisition, merger or consolidation), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, Person or the property or assets of the Person, Person so acquired; provided thatacquired or, in 22 the case of assumed Indebtedness, to any property or assets other than those acquired from such Indebtedness was permitted by Person, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those instruments, provided that the terms encumbrances or restrictions contained in any such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings, taken as a whole, are not materially more restrictive than the encumbrances or restrictions contained in instruments in effect on the date of this Guaranty to be incurredacquisition;
(7) customary non-assignment provisions in leases or other agreements entered into in the ordinary course of business and consistent with past practices;
(8) purchase money obligations for property acquired in the ordinary course of business that impose on such property restrictions on the property so acquired of the nature described in clause (3) of paragraph (aa)(4) of this Section 4.08;
(9) any restriction imposed under an agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary assets or Equity Interests permitted under this Indenture pending its completion of such sale or other disposition;
(10) Permitted Refinancing Indebtedness; , provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictiveIndebtedness, taken as a whole, are not materially more restrictive than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness (or the documentation relating to the Indebtedness so secured) otherwise permitted to be Incurred under Section 4.12 hereof or Section 4.15 hereof that limit the right of the debtor to dispose of the assets subject to such LienLiens;
(12) customary provisions with respect to limiting or prohibiting the disposition or distribution of assets or property in joint venture agreements, assets asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into in agreements, which limitation or prohibition is applicable only to the ordinary course assets that are the subject of businesssuch agreements; and
(13) restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business.
Appears in 1 contract
Sources: Indenture (UTAC Holdings Ltd.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space shall The Issuer will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create 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 to Loral Space the Issuer or any of its Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness Indebtedness owed to Loral Space the Issuer or any of its Restricted Subsidiaries;Subsidiary; or
(2) make loans or advances to Loral Space the Issuer or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to Loral Space or any of its Restricted SubsidiariesSubsidiary.
(b) The restrictions set forth in paragraph (aSection 4.08(a) of this Section 4.08 shall not hereof will not, however, apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as in effect on the Issue Date and any amendmentsapplicable law, modificationsrule, restatementsregulation, renewalsorder, increasesapproval, supplementslicense, refundings, replacements permit or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Datesimilar restriction;
(2) restrictions contained in any documents or agreements evidencing, relating to or otherwise governing a Receivables Financing with respect to any Receivables Subsidiary;
(3) contractual encumbrances or restrictions in effect under any Indebtedness (a) represented by the Initial Notes and the Note Guarantees issued on the Issue Date, (b) outstanding on the Issue Date (including all Indebtedness under the Revolving Credit Facility and the Term Loan Credit Facility) and (c) otherwise permitted pursuant to this Indenture; provided that with respect to clause (c) the restrictions contained in the agreements or instruments governing such Indebtedness are not materially less favorable to Holders than is customary for comparable financings (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause Issuer);
(4) of paragraph (b) of Section 4.05; provided that, other than with respect any restrictions imposed by any agreement relating to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds secured Indebtedness permitted by this Indenture to the Guarantor extent that such restrictions apply only to the assets securing such Indebtedness;
(5) any agreement in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement effect at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that time such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary becomes a Restricted Subsidiary, customary (so long as so determined) restrictions on transactions such agreement was not entered into in contemplation of or in connection with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any such person becoming a Restricted Subsidiary;
(36) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment customary restrictions than those contained in such Credit Agreement, as in effect on any agreement relating to the Issue Date;
(4) sale of any asset permitted under Section 4.10 hereof pending the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5) applicable law;
(6) any instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space or any of its Restricted Subsidiaries as in effect at the time consummation of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty to be incurredsale;
(7) customary non-assignment provisions in leases joint venture agreements, partnership agreements, limited liability company documents and other similar agreements, in each case entered into in the ordinary course of business and consistent with past practicesbusiness;
(8) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08;
(9) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions customary provisions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(12) provisions with respect to the disposition leases or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements licenses and other similar agreements entered into in the ordinary course of business; and;
(139) customary restrictions on cash or other in connection with deposits or net worth imposed by customers under contracts in the ordinary course of business;
(10) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(11) encumbrances on property that exist at the time the property was acquired by the Issuer or a Restricted Subsidiary;
(12) other restrictions described in clauses (1) and (2) of this Section 4.08(a) hereof, but only to the extent that such restrictions do not materially adversely affect the consolidated cash position of the Issuer and the Restricted Subsidiaries; and
(13) any amendment, restatement, renewal, replacement or refinancing of an agreement referred to above; provided such restrictions are not materially more restrictive, taken as a whole, than those under the agreement being amended, restated, renewed, refinanced or replaced.
Appears in 1 contract
Sources: Indenture (WESTMORELAND COAL Co)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create 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 to Loral Space the Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space the Issuer or any of its Restricted Subsidiaries;
(2) make loans or advances to Loral Space the Issuer or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to Loral Space the Issuer or any of its Restricted Subsidiaries.
(b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Spacethe Issuer) encumbrance or restriction applicable to Loral Space the Issuer or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space the Issuer or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor Issuer in an amount sufficient for Loral Space the Issuer to make the timely payment of interest, premium, premium (if any), Liquidated Damages (if any) and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty Indenture and the Securities and other Indebtedness that is solely an obligation of Loral Spacethe Issuer, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space the Issuer or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space the Issuer or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space this Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary GuarantorsSecurities;
(5) applicable law;
(6) any instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space the Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty to be incurred;
(7) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
(8) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08;
(9) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(12) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
(13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.the
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space shall The Issuer will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create 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 to Loral Space the Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness Indebtedness owed to Loral Space or any of its Restricted Subsidiaries;
(2) make loans or advances to Loral Space the Issuer or any of its Restricted Subsidiaries; or
(32) transfer any of its properties make loans or assets advances to Loral Space the Issuer or any of its Restricted Subsidiaries.
(b) The restrictions set forth in paragraph (aSection 4.08(a) of this Section 4.08 shall hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as applicable law, rule, regulation, order, approval, license, permit or similar restriction;
(2) restrictions contained in any documents or agreements evidencing, relating to or otherwise governing a Receivables Financing with respect to any Receivables Subsidiary;
(3) contractual encumbrances or restrictions in effect under (a) any Indebtedness outstanding on the Issue Date and (b) under any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereofIndebtedness otherwise permitted pursuant to this Indenture; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment clause (b) the restrictions than those contained in the agreements or instruments governing such Existing Indebtedness, as in effect on Indebtedness are not materially less favorable to Holders of the Issue Date;
(2) any Notes than is customary for comparable financings (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause Issuer);
(4) of paragraph (b) of Section 4.05; provided that, other than with respect any restrictions imposed by any agreement relating to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds secured Indebtedness permitted by this Indenture to the Guarantor extent that such restrictions apply only to the assets securing such Indebtedness;
(5) any agreement in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement effect at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that time such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary becomes a Restricted Subsidiary, customary (so long as so determined) restrictions on transactions such agreement was not entered into in contemplation of or in connection with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any such person becoming a Restricted Subsidiary;
(36) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment customary restrictions than those contained in such Credit Agreement, as in effect on any agreement relating to the Issue Date;
(4) sale of any asset permitted under Section 4.10 hereof pending the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5) applicable law;
(6) any instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space or any of its Restricted Subsidiaries as in effect at the time consummation of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty to be incurredsale;
(7) customary non-assignment provisions in leases joint venture agreements, partnership agreements, limited liability company documents and other similar agreements, in each case, applicable to joint ventures entered into in the ordinary course of business and consistent with past practicesbusiness;
(8) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08;
(9) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions customary provisions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(12) provisions with respect to the disposition leases or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements licenses and other similar agreements entered into in the ordinary course of business; and;
(139) customary restrictions on cash or other in connection with deposits or net worth imposed by customers under contracts in the ordinary course of business;
(10) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(11) encumbrances on property that exist at the time the property was acquired by the Issuer or a Restricted Subsidiary;
(12) restrictions described in clauses (1) and (2) of Section 4.08(a) hereof, but only to the extent that such restrictions do not materially adversely affect the consolidated cash position of the Issuer and its Restricted Subsidiaries; and
(13) any amendment, restatement, renewal, replacement or refinancing of an agreement referred to above; provided such restrictions are not materially more restrictive, taken as a whole, than those under the agreement being amended, restated, renewed, refinanced or replaced.
Appears in 1 contract
Sources: Indenture (Walter Energy, Inc.)