Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to: (1) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are Guarantors; (2) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are Guarantors; or (3) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction. (b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of: (1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentation; (2) this Indenture, the Notes and the Guarantees; (3) purchase money obligations that impose encumbrances or restrictions on a property so acquired; (4) applicable law or any applicable rule, regulation or order; (5) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company; (6) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Subsidiary; (7) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness; (8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business; (9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10; (10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business; (11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements; (12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer); (13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary; (14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness; (15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; (16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary; (17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; (18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12; (19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary; (20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or (21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 2 contracts
Sources: Indenture (Warner Music Group Corp.), Indenture (Warner Music Group Corp.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Subject to the provisions of Section 4.08(b) below, the Main Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors Subsidiary to, directly create or indirectly, create otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock Equity Interests to the Main Issuer or any of its Restricted Subsidiaries that are Guarantors, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2) pay any Debt or other liabilities owed to the Issuers or any other Subsidiary;
(3) make loans or advances to the Issuer Issuers or any of its Restricted Subsidiaries that are Guarantorsother Subsidiary; or
(34) sell, lease or transfer any of its properties property or assets to the Main Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiary.
(b) However, The restrictions in Section 4.15(a4.08(a) hereof will not apply to any encumbrances or restrictions:
(1) existing pursuant to the Term Loan Facility 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, no less favorable in any material respect to the Holders than the encumbrances or restrictions consisting ofbeing amended, modified, restated, extended, renewed, replaced or refinanced;
(2) existing pursuant to this Indenture, the Notes or the Security Documents;
(3) existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreementof applicable law, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentation;
(2) this Indenture, the Notes and the Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) existing under any agreement agreements or other instrument of a instruments of, or with respect to any Person, or relating to Indebtedness the property or Capital Stock assets of a any Person, which at the time the Person is acquired by or merged or consolidated with or into the Issuer Wilpinjong Opco or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companyits Subsidiaries;
(65) of the type described in Section 4.08(a)(4) arising or agreed to (i) in the ordinary course of business that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or similar contract, including with respect to intellectual property, or (ii) that restrict in a customary manner, pursuant to provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements, the transfer of ownership interests in, or assets of, such partnership, limited liability company, Joint Venture or similar Person or (iii) by virtue of any Lien on, or agreement to transfer, option or similar right with respect to, or Lien on, to any property or assets of the Issuer of, Wilpinjong Opco or any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions of its Subsidiaries;
(6) with respect to a Subsidiary Wilpinjong Opco and its Subsidiaries and imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock of, or property and assets of, the Subsidiary pending closing of such Subsidiarysale or disposition that is permitted by this Indenture;
(7) Secured Indebtedness otherwise permitted to be incurred existing pursuant to Sections 4.10 any agreement with the Wilpinjong Mine Customer in effect on the Issue Date and 4.12 any amendment, modification, restatement, extension, renewal or replacement of any such agreement that limits is no less favorable in any material respect to the right of Holders than the debtor to dispose of agreement in effect on the assets securing such IndebtednessIssue Date;
(8) existing pursuant to Permitted Refinancing Debt; provided that the encumbrances and restrictions contained in the agreements governing such Permitted Refinancing Debt are, taken as a whole, no less favorable in any material respect to the Holders than those contained in the agreements governing the Debt being refinanced;
(9) consisting of restrictions on cash or other deposits or net worth imposed by customers non-financial lessors, customers, suppliers or suppliers under contracts entered into required by insurance surety bonding companies or in connection with any reclamation activity of the Main Issuer or a Subsidiary, in each case, in the ordinary course of business;
(910) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date existing pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the purchase money obligations for property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to acquired in the ordinary course of business and does not detract from Finance Leases or operating leases or Mining Leases that impose encumbrances or restrictions discussed in Section 4.08(a)(4) on the value of property so acquired or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiarycovered thereby;
(2011) [reserved];
(12) existing pursuant to customary provisions restricting dispositions in joint venture, operating or similar agreements, asset sale agreements and stock sale agreements required in connection with the entering into of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; orsuch transaction;
(2113) an existing pursuant to any agreement or instrument relating to any Indebtedness incurred Debt permitted to be Incurred subsequent to the Issue Date (i) by Section 4.09 hereof if the such encumbrances and restrictions contained in any such agreement or instrument are, taken as a whole are not materially whole, no less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous any material respect to the Holders than is customary in comparable financings (as determined in good faith by the Main Issuer) ), and either (x) the Main Issuer determines in good faith that such encumbrance or restriction encumbrances and restrictions will not materially affect the Issuer’s Issuers’ ability to make principal or interest payments on the Notes as and when they become due; and
(14) existing under or (y) by reason of any Debt secured by a Lien permitted to be Incurred pursuant to Section 4.09 and Section 4.12 hereof that limit the right of Wilpinjong Opco or any of its Subsidiaries to dispose of the assets securing such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such IndebtednessDebt.
Appears in 2 contracts
Sources: First Supplemental Indenture (Peabody Energy Corp), Transaction Support Agreement (Peabody Energy Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Issuers shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions to either Issuer or any Restricted Subsidiary (1) on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the either Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the either Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the either Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, Date (including, without limitation, pursuant to Existing Indebtedness the First Lien Credit Agreement and related documentationthe Second Lien Credit Agreement), (B) contractual encumbrances or restrictions pursuant to the Credit Agreement and the other Credit Agreement Documents, (C) contractual encumbrances or restrictions pursuant to the indentures governing the ADT First Lien Notes, and (D) in each case, any similar contractual encumbrances or restrictions or any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes and or the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the an Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in Section 4.05(c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business or consistent with past practice or industry norm;
(11) in the case of Section 4.05(c) above, any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including without limitations, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Special Purpose Securitization Subsidiary effected in connection with a Qualified Permitted Securitization Financing; provided, however, that such restrictions apply only to any such Special Purpose Securitization Subsidiary;
(1413) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15a) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the either Issuer or any Restricted Subsidiary in any manner material to the Issuer that is a Subsidiary Guarantor or such Restricted Subsidiary;
a Foreign Subsidiary or (20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement Subsidiary that is not a Subsidiary Guarantor or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are will not materially less favorable affect the Issuers’ ability to the Holders than the encumbrances and restrictions contained in agreements in effect make anticipated principal or interest payments on the Issue Date Notes (as determined in good faith by the IssuerIssuers), provided that in the case of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.03;
(14) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(15) any encumbrances or restrictions of the type referred to in Section 4.05(a), (b) or (iic) if above 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 (14) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction is refinancings are, in the good faith judgment of the Issuers, not materially more disadvantageous restrictive with respect to such dividend and other payment restrictions than those contained in the Holders than is customary in comparable financings dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (as determined in good faith by the Issuer) and either (xi) the Issuer determines priority of any Preferred Stock in good faith that such encumbrance receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction will not materially affect on the Issuer’s ability to make principal distributions on Capital Stock and (ii) the subordination of loans or interest payments advances made to an Issuer or a Restricted Subsidiary to other Indebtedness Incurred by an Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the Notes ability to make loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 2 contracts
Sources: Indenture (ADT, Inc.), Indenture (ADT, Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors Subsidiary to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock Equity Interests to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness liabilities owed to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary;
(2) make loans or advances advances, or guarantee any such loans or advances, to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Issuer Company or any of its other Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiary.
(b) However, Section 4.15(aThe restrictions set forth in paragraph (a) will above shall not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to agreements governing Existing Indebtedness and related documentationCredit Facilities as in effect on October 8, 2003 and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided, however, 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 and Credit Facilities, as in effect on October 8, 2003;
(2) this Indenture, the Notes Indenture and the GuaranteesNotes;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time such Person becomes a Restricted Subsidiary of such acquisition, merger, consolidation or transaction the Company (except to the extent that such Indebtedness or Capital Stock was Incurred or issued in connection with or in contemplation of such Person becoming a Restricted Subsidiary), which encumbrance or restriction is not applicable to the Company or any other Restricted Subsidiary of the Company, or the properties or assets of the Company or any other Restricted Subsidiary of the Company, other than the Person, or the property or assets of such Person; provided, however, that, in the case of Indebtedness, such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes permitted by the terms of this clause (5), if a Person other than Indenture to be Incurred at the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of time such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or becomes a Restricted Subsidiary, as ;
(5) customary non-assignment provisions in leases entered into in the case may be, when such Person becomes such Successor Companyordinary course of business and consistent with past practices;
(6) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any purchase money obligations for property or assets acquired in the ordinary course of business that impose restrictions on the property so acquired of the Issuer or nature described in clause (3) of paragraph (a) above;
(7) any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending its sale or assets of such Subsidiaryother disposition;
(78) Permitted Refinancing Indebtedness; provided, however, 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; provided, further, however, that if such Permitted Refinancing Indebtedness could not be entered into on commercially reasonable terms without the inclusion of dividend and other payment restrictions that are materially more restrictive than those contained in the existing Indebtedness (as determined in good faith by the Board of Directors of the Company), the Company or its Restricted Subsidiary may enter into such Permitted Refinancing Indebtedness, provided that the dividend and other payment restrictions contained therein will not materially impair the Company’s ability to make payments on the Notes (as determined in good faith by the Board of Directors of the Company);
(9) Secured Liens securing Indebtedness otherwise that is permitted to be incurred secured without also securing the Notes or the applicable Subsidiary Guarantee pursuant to Sections 4.10 and 4.12 Section 4.11 hereof that limits limit the right of the debtor to dispose of the assets securing subject to any such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10Lien;
(10) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement on cash or other modification to an Initial Agreement deposits or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith net worth imposed by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement customers under contracts entered into in the ordinary course of business;
(1812) any encumbrances Indebtedness or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
any agreement pursuant to which such Indebtedness was issued if (19a) any the encumbrance or restriction that arises applies only upon a payment or is agreed to in the ordinary course financial covenant default or event of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions default contained in any such agreement Indebtedness or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date agreement, (as determined in good faith by the Issuerb) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the IssuerBoard of Directors of the Company) and either (xc) the Issuer determines in good faith that such encumbrance or restriction will not materially affect impair the IssuerCompany’s ability to make principal or interest payments on the Notes (as determined in good faith by the Board of Directors of the Company); and
(13) Non-Recourse Accounts Receivable Entity Indebtedness or (y) other contractual requirements of an Accounts Receivable Entity in connection with a Qualified Receivables Transaction; provided that such encumbrance or restriction applies restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such IndebtednessAccounts Receivables Entity or the receivables which are subject to the Qualified Receivables Transaction.
Appears in 2 contracts
Sources: Indenture (Quebecor Media Inc), Indenture (Videotron Ltee)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer Borrower will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Borrower or any of its Restricted Subsidiaries that are Guarantors, on its Capital Stock; or with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(c) create, incur, assume or suffer to exist Liens on the Collateral of such Person for the benefit of the Lenders with respect to the Term Loan Facility and the Obligations or under the Loan Documents; or
(3d) sell, lease or transfer any of its properties or assets to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) or entered into on the Closing Date, including pursuant to this Agreement, the Loan Documents and the other documents relating to this agreement, any ABL Credit Agreement and the other documents relating to any ABL Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, Swap Contracts and Indebtedness permitted pursuant to Existing Indebtedness and related documentationSection 7.03(b)(3);
(2) this any Senior Notes Indenture, the Notes Senior Notes, and the Guaranteesany exchange notes and Guarantees thereof;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged merged, amalgamated or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Borrower or any Restricted Subsidiary or an Unrestricted Subsidiary that is designated a Restricted Subsidiary that was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (or at the time it merges with or into the Borrower or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in each case, not created in contemplation thereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired or designated; provided that in connection with a merger, amalgamation or consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes of under this clause (54), if a Person other than the Issuer Borrower or such Restricted Subsidiary is the Successor Company successor company with respect theretoto such merger, amalgamation or consolidation, any Subsidiary thereof or agreement or instrument of such Person or any Subsidiary of such Subsidiary Person, shall be deemed acquired or assumed, as the case may be, by the Issuer Borrower or a such Restricted Subsidiary, as the case may be, when at the time of such Person becomes such Successor Companymerger, amalgamation or consolidation;
(65) any transfer of, agreement customary encumbrances or restrictions contained in contracts or agreements for the sale of assets applicable to transfer, option or right with respect to, or Lien on, any property or such assets pending consummation of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenturesuch sale, including without limitation, customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(6) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(7) Secured customary provisions in (x) joint venture agreements entered into in the ordinary course of business with respect to the Equity Interests subject to the joint venture and (y) operating or other similar agreements, asset sale agreements, stock sale agreements entered into in connection with the entering into of such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(8) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business to the extent imposing restrictions of the nature discussed in clause (c) above on the property so acquired;
(9) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent imposing restrictions of the type described in clause (c) above on the property subject to such lease;
(10) any encumbrance or restriction effected in connection with a Qualified Receivables Factoring or Qualified Receivables Financing that, in the good faith determination of the Borrower, is necessary or advisable to effect such Qualified Receivables Factoring or Qualified Receivables Financing, as applicable;
(11) any encumbrance or restriction contained in other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Borrower that is Incurred subsequent to the Closing Date pursuant to Section 7.03; provided that such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Borrower’s ability to make anticipated principal or interest payment on the Loans (as determined by the Borrower in good faith);
(12) any encumbrance or restriction contained in secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 7.01 and 4.12 that limits 7.03 to the extent limiting the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business business, not relating to any Indebtedness, and does not that do not, individually or in the aggregate, (x) detract from the value of the property or assets of the Issuer Borrower or any Restricted Subsidiary in any manner material to the Issuer Borrower or such any Restricted SubsidiarySubsidiary or (y) materially affect the Borrower’s ability to make anticipated principal or interest payment on the Loans (as determined by the Borrower in good faith);
(2014) customary provisions restricting dispositions encumbrances or restrictions existing under, by reason of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiarywith respect to Refinancing Indebtedness; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if provided that the encumbrances and restrictions contained in any such agreement or instrument the agreements governing that Refinancing Indebtedness are not materially more restrictive, taken as a whole are not materially less favorable to the Holders whole, than the encumbrances and restrictions those contained in the agreements governing the Indebtedness being refinanced; and
(15) 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 effect clauses (1) through (14) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Borrower, no more restrictive as a whole with respect to such encumbrances or restrictions than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 7.09 (i) 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 Issue Date (as determined in good faith by the Issuer) or ability to make distributions on Capital Stock and (ii) if such encumbrance the subordination of loans or restriction is not materially more disadvantageous advances made to the Holders than is customary in comparable financings (as determined in good faith Borrower or a Restricted Subsidiary of the Borrower to other Indebtedness Incurred by the Issuer) and either (x) Borrower or any such Restricted Subsidiary shall not be deemed a restriction on the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal loans or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 2 contracts
Sources: Credit Agreement (CommScope Holding Company, Inc.), Term Loan Credit Agreement (CommScope Holding Company, Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Holdings shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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 Holdings or such Restricted Subsidiary to:
(1a) (i) pay dividends or make any other distributions to Holdings or any Restricted Subsidiary on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, Date and (B) contractual encumbrances or restrictions pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Credit Agreement Documents and, in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes (and any Exchange Notes) or the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Holdings or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business;
(11) in the case of clause (c) above, any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 2 contracts
Sources: Indenture (Athlon Energy Inc.), Indenture (Athlon Energy Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Issuers shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions to an Issuer or any Restricted Subsidiary (1) on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the an Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the an Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the an Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, Date and (B) contractual encumbrances or restrictions pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Credit Agreement Documents, the Notes Documents and, in each case, any similar contractual encumbrances or restrictions or any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes and or the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the an Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in Section 4.05(c) on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business or consistent with past practice or industry norm;
(11) in the case of Section 4.05(c), any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including, without limitation, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant contained in any Permitted Securitization Document with respect to any agreementSpecial Purpose Securitization Subsidiary;
(13) other Indebtedness, instrument Disqualified Stock or obligation Preferred Stock (a) of an Issuer or any Restricted Subsidiary that is a “Refinancing Agreement”Subsidiary Guarantor or a Foreign Subsidiary or (b) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument Restricted Subsidiary that is not a Subsidiary Guarantor or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such Refinancing Agreement agreement or Amendment taken as a whole are instrument will not materially less favorable affect the Issuers’ ability to make anticipated principal or interest payments on the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates Notes (as determined in good faith by the IssuerIssuers);
, provided that in the case of each of clauses (13a) any encumbrance and (b), such Indebtedness, Disqualified Stock or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only Preferred Stock is permitted to any Securitization Subsidiarybe Incurred subsequent to the Issue Date pursuant to Section 4.03;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(15) any tradingencumbrances or restrictions of the type referred to in Section 4.05(a), netting(b) or (c) imposed by any amendments, operatingmodifications, constructionrestatements, servicerenewals, supplyincreases, purchasesupplements, sale refundings, replacements or other agreement refinancings of the contracts, instruments or obligations referred to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessclauses (1) through (14) above; provided that such agreement prohibits amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the encumbrance of solely the property or assets good faith judgment of the Issuers, not materially more restrictive 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. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to an Issuer or a Restricted Subsidiary to other Indebtedness Incurred by an Issuer or any such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does shall not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing be deemed a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal loans or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 2 contracts
Sources: Indenture (Muzak Capital, LLC), Indenture (Muzak Capital, LLC)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Holdings shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Holdings or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to Existing Indebtedness the Senior Credit Facilities and related documentationthe other Senior Credit Documents;
(2) this Indenture, the Securities, the Senior Subordinated Notes and the Guaranteesindenture relating to the Senior Subordinated Notes;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Holdings or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer or Person, so acquired;
(5) any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all the Capital Stock or assets of such SubsidiaryRestricted Subsidiary pending the closing of such sale or disposition;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleases, licenses or asset sale agreements leases and other agreementssimilar agreements entered into in the ordinary course of business that impose restrictions of the type described in clause (c) above on the property subject to such lease;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) any encumbrance or restriction in connection with Non-Recourse Product Financing other Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;Subsidiary of Holdings (i) that is the Company or a Guarantor that is Incurred subsequent to the Issue Date pursuant to Section 4.03 or (ii) that is Incurred by a Foreign Subsidiary of Holdings subsequent to the Issue Date pursuant to clauses (iv), (xii) or (xx) of Section 4.03(b); or
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(1813) any encumbrances or restrictions arising of the type referred to in connection clauses (a), (b) and (c) above 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 (12) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive with cash respect to such dividend and other payment restrictions than those contained in the dividend or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and payment restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating prior to such Indebtednessamendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 2 contracts
Sources: Indenture (Nalco Holding CO), Indenture (Nalco Holding CO)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Parent and the Issuers shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors Material Subsidiary 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 an Issuer or any such Restricted Material Subsidiary to:
(1a) pay dividends or make any other distributions to the Parent or any Restricted Subsidiary (1) on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are GuarantorsStock, or (2) with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are Guarantors;; or
(2b) make loans or advances to the Issuer Parent or any Restricted Subsidiary that is a direct or indirect parent of its Restricted Subsidiaries that are Guarantors; or
(3) sellsuch Material Subsidiary, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) entered into on the Issue Date, including, without limitation, including (A) pursuant to the Credit Agreement and the other Credit Agreement Documents and (B) the Existing Indebtedness Notes, the Existing Notes Indentures, and the related documentationguarantees, and, in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes and Notes, the Guarantees, the Second Lien Collateral Documents or the Intercreditor Agreements;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Parent or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including, without limitation, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(1413) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15a) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer Parent or any Restricted Subsidiary in any manner material to the Issuer that is an Issuer, a Guarantor or such Restricted Subsidiary;
a Foreign Subsidiary or (20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) Subsidiary that is not an agreement Issuer, a Guarantor or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are will not materially less favorable affect the Issuers’ ability to the Holders than the encumbrances and restrictions contained in agreements in effect make anticipated principal or interest payments on the Issue Date Notes (as determined in good faith by the Issuer); provided that in the case of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.03;
(14) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(15) any encumbrances or restrictions of the type referred to in Section 4.05(a) or (iib) if above 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 (14) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction is not materially more disadvantageous to refinancings are, in the Holders than is customary in comparable financings (as determined in good faith by judgment of the Issuer) , no more restrictive with respect to such dividend and either 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. For purposes of determining compliance with this Section 4.05, (xi) the Issuer determines priority of any Preferred Stock in good faith that such encumbrance receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on other Capital Stock shall not be deemed a restriction will not materially affect on the Issuer’s ability to make principal distributions on Capital Stock and (ii) the subordination of loans or interest payments advances made to the Parent or a Restricted Subsidiary to other Indebtedness Incurred by the Parent or any such Restricted Subsidiary shall not be deemed a restriction on the Notes ability to make loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 2 contracts
Sources: Indenture (Mallinckrodt PLC), Indenture (Mallinckrodt PLC)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors Subsidiary to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock Equity Interests to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness liabilities owed to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary;
(2) make loans or advances advances, or guarantee any such loans or advances, to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Issuer Company or any of its other Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiary.
(b) However, Section 4.15(aThe restrictions set forth in paragraph (a) will above shall not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to agreements governing Existing Indebtedness and related documentationCredit Facilities as in effect on October 8, 2003 and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided, however, 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 and Credit Facilities, as in effect on October 8, 2003;
(2) this Indenture, the Notes Indenture and the GuaranteesNotes;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time such Person becomes a Restricted Subsidiary of such acquisition, merger, consolidation or transaction the Company (except to the extent that such Indebtedness or Capital Stock was Incurred or issued in connection with or in contemplation of such Person becoming a Restricted Subsidiary), which encumbrance or restriction is not applicable to the Company or any other Restricted Subsidiary of the Company, or the properties or assets of the Company or any other Restricted Subsidiary of the Company, other than the Person, or the property or assets of such Person; provided, however, that, in the case of Indebtedness, such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes permitted by the terms of this clause (5), if a Person other than Indenture to be Incurred at the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of time such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or becomes a Restricted Subsidiary, as ;
(5) customary non-assignment provisions in leases entered into in the case may be, when such Person becomes such Successor Companyordinary course of business and consistent with past practices;
(6) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any purchase money obligations for property or assets acquired in the ordinary course of business that impose restrictions on the property so acquired of the Issuer or nature described in clause (3) of paragraph (a) above;
(7) any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending its sale or assets of such Subsidiaryother disposition;
(78) Permitted Refinancing Indebtedness; provided, however, 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; provided, further, however, that if such Permitted Refinancing Indebtedness could not be entered into on commercially reasonable terms without the inclusion of dividend and other payment restrictions that are materially more restrictive than those contained in the existing Indebtedness (as determined in good faith by the Board of Directors of the Company), the Company or its Restricted Subsidiary may enter into such Permitted Refinancing Indebtedness, provided, that the dividend and other payment restrictions contained therein will not materially impair the Company’s ability to make payments on the Notes (as determined in good faith by the Board of Directors of the Company);
(9) Secured Liens securing Indebtedness otherwise that is permitted to be incurred secured without also securing the Notes or the applicable Subsidiary Guarantee pursuant to Sections 4.10 and 4.12 Section 4.11 hereof that limits limit the right of the debtor to dispose of the assets securing subject to any such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10Lien;
(10) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement on cash or other modification to an Initial Agreement deposits or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith net worth imposed by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement customers under contracts entered into in the ordinary course of business;
(1812) any encumbrances Indebtedness or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
any agreement pursuant to which such Indebtedness was issued if (19A) any the encumbrance or restriction that arises applies only upon a payment or is agreed to in the ordinary course financial covenant default or event of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions default contained in any such agreement Indebtedness or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date agreement, (as determined in good faith by the IssuerB) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the IssuerBoard of Directors of the Company) and either (xC) the Issuer determines in good faith that such encumbrance or restriction will not materially affect impair the IssuerCompany’s ability to make principal or interest payments on the Notes (as determined in good faith by the Board of Directors of the Company); and
(13) Non-Recourse Accounts Receivable Entity Indebtedness or (y) other contractual requirements of an Accounts Receivable Entity in connection with a Qualified Receivables Transaction; provided that such encumbrance or restriction applies restrictions apply only if a default occurs in respect of a payment or financial covenant relating to such IndebtednessAccounts Receivables Entity or the receivables which are subject to the Qualified Receivables Transaction.
Appears in 2 contracts
Sources: Indenture (Videotron Ltee), Indenture (Quebecor Media Inc)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors Subsidiary to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock Equity Interests to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness liabilities owed to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary;
(2) make loans or advances advances, or guarantee any such loans or advances, to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Issuer Company or any of its other Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiary.
(b) However, Section 4.15(aThe restrictions set forth in paragraph (a) will above shall not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to agreements governing Existing Indebtedness and related documentationCredit Facilities as in effect on October 8, 2003 and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided, however, 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 and Credit Facilities, as in effect on October 8, 2003;
(2) this Indenture, the Notes Indenture and the GuaranteesNotes;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Company or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction acquisition (except to the extent that such Indebtedness or Capital Stock was Incurred or issued 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, however, that, in the case of Indebtedness, such Indebtedness was incurred permitted by the terms of this Indenture to finance, or otherwise in connection with, be Incurred at the time of such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause ;
(5), if a Person other than ) customary non-assignment provisions in leases entered into in the Issuer is the Successor Company ordinary course of business and consistent with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companypast practices;
(6) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any purchase money obligations for property or assets acquired in the ordinary course of business that impose restrictions on the property so acquired of the Issuer or nature described in clause (3) of paragraph (a) above;
(7) any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending its sale or assets of such Subsidiaryother disposition;
(78) Permitted Refinancing Indebtedness; provided, however, that any 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;
(9) Secured Liens securing Indebtedness otherwise that is permitted to be incurred secured without also securing the Notes or the applicable Subsidiary Guarantee pursuant to Sections 4.10 and 4.12 Section 4.11 hereof that limits limit the right of the debtor to dispose of the assets securing subject to any such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10Lien;
(10) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement on cash or other modification to an Initial Agreement deposits or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith net worth imposed by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party customers under contracts entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;and
(1612) customary provisions restricting subletting any Indebtedness or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in pursuant to which such Indebtedness was issued if the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises applies only upon a payment or is agreed to in the ordinary course financial covenant default or event of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions default contained in any such Indebtedness or agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the IssuerA) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the IssuerBoard of Directors of the Company) and either (xB) management of the Issuer determines in good faith Company delivers to the Trustee an Officers’ Certificate evidencing its determination at the time such agreement is entered into, that such encumbrance or restriction will not materially affect impair the IssuerCompany’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such IndebtednessNotes.
Appears in 2 contracts
Sources: Indenture (Videotron Ltee), Indenture (Videotron Ltee)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) entered into on the Issue DateDate or entered into in connection with the refinancing of the existing Indebtedness of the Issuer, including, without limitation, including pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Senior Credit Documents, documents and agreements relating to the Specified Intercompany Agreements, the Parent Notes, the ▇▇▇▇▇▇▇ Notes and the Intelsat Luxembourg Intercompany Loan;
(2) this Indenture, the Notes and the Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer Person, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary any restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements (including customary provisions in agreements relating to any Joint Venture);
(9) other Indebtedness or Preferred Stock (i) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to nature discussed in clause (c) above on the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10property so acquired;
(10) customary provisions contained in joint venture agreements leases, subleases, assignments, licenses (including without limitation, licenses of intellectual property), contracts and other similar agreements entered into in the ordinary course of businessbusiness that impose restrictions of the type described in clause (c) above on the property subject to such lease;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization FinancingReceivables Financing that, in the good faith judgment of the Issuer, are necessary or advisable in connection therewith; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) agreements and instruments, including agreements and instruments governing Indebtedness, Disqualified Stock or Preferred Stock of any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets Subsidiary of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred Incurred subsequent to the Issue Date and permitted pursuant to Section 4.03; provided that either (iA) if the provisions relating to such encumbrance or restriction contained in such agreements or instruments are no less favorable to the Issuer, taken as a whole, as determined by the Board of Directors of the Issuer in good faith, than the provisions contained in the Credit Agreement and the other Senior Credit Documents, the Intelsat Luxembourg Intercompany Loan or in an indenture governing the Parent Notes, the ▇▇▇▇▇▇▇ Notes or the Notes, in each case, as in effect or entered into on the Issue Date or entered into in connection with the refinancing of existing Indebtedness of the Issuer or (B) such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined by the Issuer in good faith);
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; and
(14) any encumbrances or restrictions of the type referred to in clauses (ya), (b) and (c) of this Section 4.05 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 (13) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if refinancings are, in the good faith judgment of the Issuer, no more restrictive as a default occurs in whole with respect of a payment or financial covenant relating to such Indebtednessencumbrances and restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on ordinary shares shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 2 contracts
Sources: Indenture (Intelsat S.A.), Indenture (Intelsat S.A.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors Subsidiary 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 the Company or any such Restricted Subsidiary to:
(1a) pay dividends or make any other distributions to the Company or any Restricted Subsidiary (1) on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are Guarantors;; or
(2b) make loans or advances to the Issuer Company or any Restricted Subsidiary that is a direct or indirect parent of its such Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (i) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, Date and (ii) contractual encumbrances or restrictions pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Credit Agreement Documents and, in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes or the Guarantees (including any Exchange Notes and the Guaranteesrelated guarantees);
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Company or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements, partnership agreements, limited liability company agreements and similar agreements required in connection with the entering into of such transaction;
(9) other Indebtedness or Preferred Stock (i) purchase money obligations for property acquired in the ordinary course of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10business and Capitalized Lease Obligations otherwise not prohibited under this Indenture;
(10) customary provisions contained in joint venture agreements leases, licenses and other similar agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction that restricts in a customary provisions contained in leasesmanner the subletting, subleasesassignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including without limitations, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any such Securitization Subsidiary;
(1413) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15a) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer Company or any Restricted Subsidiary in any manner material to the Issuer that is a Guarantor or such Restricted Subsidiary;
a Foreign Subsidiary or (20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement Subsidiary that is not a Guarantor or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are will not materially less favorable affect the Company’s ability to the Holders than the encumbrances and restrictions contained in agreements in effect make anticipated principal or interest payments on the Issue Date Notes (as determined in good faith by the IssuerCompany), provided that in the case of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.03;
(14) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(15) any encumbrances or restrictions of the type referred to in Section 4.05(a) or (iib) if above 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 (14) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction is refinancings are, in the good faith judgment of the Company, not materially more disadvantageous restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Holders than is customary in comparable financings dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (as determined in good faith by the Issuer) and either (xi) the Issuer determines priority of any Preferred Stock in good faith that such encumbrance receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction will not materially affect on the Issuer’s ability to make principal distributions on Capital Stock and (ii) the subordination of loans or interest payments advances made to the Company or a Restricted Subsidiary to other Indebtedness Incurred by the Company or any such Restricted Subsidiary shall not be deemed a restriction on the Notes ability to make loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 2 contracts
Sources: Indenture (Enpro Industries, Inc), Indenture (Enpro Industries, Inc)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Company or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) entered into on the Issue Date, including, without limitation, including pursuant to Existing Indebtedness and related documentationthe Credit Agreement;
(2) this Indenture, the Notes Securities (and any Exchange Securities and guarantees thereof) and the GuaranteesSecurity Documents;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Company or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer Person, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary;
(76) Permitted Additional Pari Passu Obligations or any other Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses, licenses or asset sale agreements contracts and other agreementssimilar agreements entered into in the ordinary course of business that impose restrictions of the type described in clause (c) above on the property subject to such lease;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest Preferred Stock of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets Subsidiary of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred Company that is Incurred subsequent to the Issue Date (i) if the pursuant to Section 4.03; provided that such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the IssuerCompany’s ability to make anticipated principal or interest payments payment on the Notes Securities (as determined by the Company in good faith);
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; and
(14) any encumbrances or restrictions of the type referred to in clauses (ya), (b) and (c) above 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 (13) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if refinancings are, in the good faith judgment of the Company, no more restrictive as a default occurs in whole with respect of a payment or financial covenant relating to such Indebtednessdividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on ordinary shares shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Company or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 2 contracts
Sources: Indenture (Remington Arms Co Inc/), Indenture (Freedom Group, Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Holdings shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Holdings or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, Date and (B) contractual encumbrances or restrictions pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Credit Agreement Documents and, in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes (and any Exchange Notes) or the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Holdings or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement similar agreements entered into in the ordinary course of business;
(1811) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
the case of clause (19c) above, any encumbrance or restriction that arises restricts in a customary manner the subletting, assignment or is agreed to in the ordinary course transfer of business and does not detract from the value of any property or assets asset that is subject to a lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of the Issuer any such lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license (including without limitations, licenses of intellectual property) or other contracts;
(12) [reserved];
(13) other Indebtedness, Disqualified Stock or Preferred Stock (a) of Holdings or any Restricted Subsidiary in any manner material to the Issuer that is a Subsidiary Guarantor or such Restricted Subsidiary;
a Foreign Subsidiary or (20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement Subsidiary that is not a Subsidiary Guarantor or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are will not materially less favorable affect the Issuers’ ability to the Holders than the encumbrances and restrictions contained in agreements in effect make anticipated principal or interest payments on the Issue Date Notes (as determined in good faith by Holdings), provided that in the Issuercase of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.03;
(14) an Investment otherwise permitted by this Indenture;
(15) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”; or
(16) any encumbrances or restrictions of the type referred to in clauses (a), (b) or (iic) if above 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 (15) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction is not materially more disadvantageous to refinancings are, in the Holders than is customary in comparable financings (as determined in good faith by judgment of Holdings, no more restrictive with respect to such dividend and other payment restrictions than those contained in the Issuer) and either dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (xi) the Issuer determines priority of any Preferred Stock in good faith that such encumbrance receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction will not materially affect on the Issuer’s ability to make principal distributions on Capital Stock and (ii) the subordination of loans or interest payments advances made to Holdings or a Restricted Subsidiary to other Indebtedness Incurred by Holdings or any such Restricted Subsidiary shall not be deemed a restriction on the Notes ability to make loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 2 contracts
Sources: Indenture (Talos Energy Inc.), Exchange Agreement (Stone Energy Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will MHGE Holdings shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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 Issuer or any Restricted Subsidiary to:
(1a) (i) pay dividends or make any other distributions to MHGE Holdings or any Restricted Subsidiary (1) on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer MHGE Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer MHGE Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer MHGE Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Credit Agreement Documents and in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes (and any Exchange Notes) or the Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer MHGE Holdings or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business;
(11) in the case of Section 4.05(c) above, any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including without limitations, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1413) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15a) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer MHGE Holdings or any Restricted Subsidiary in any manner material to the Issuer that is an Issuer, a Subsidiary Guarantor or such Restricted Subsidiary;
a Foreign Subsidiary or (20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) Subsidiary that is not an agreement Issuer, a Subsidiary Guarantor or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are will not materially less favorable affect the Issuers’ ability to the Holders than the encumbrances and restrictions contained in agreements in effect make anticipated principal or interest payments on the Issue Date Notes (as determined in good faith by MHGE Holdings), provided that in the Issuercase of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.03;
(14) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(15) any encumbrances or restrictions of the type referred to in Section 4.05(a), (b) or (iic) if above 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 (14) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction is not materially more disadvantageous to refinancings are, in the Holders than is customary in comparable financings (as determined in good faith by judgment of MHGE Holdings, no more restrictive with respect to such dividend and other payment restrictions than those contained in the Issuer) and either dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (xi) the Issuer determines priority of any Preferred Stock in good faith that such encumbrance receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction will not materially affect on the Issuer’s ability to make principal distributions on Capital Stock and (ii) the subordination of loans or interest payments advances made to MHGE Holdings or a Restricted Subsidiary to other Indebtedness Incurred by MHGE Holdings or any such Restricted Subsidiary shall not be deemed a restriction on the Notes ability to make loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 2 contracts
Sources: Indenture (McGraw-Hill Interamericana, Inc.), Indenture (McGraw-Hill Global Education LLC)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiaries.
(b) However, the preceding restrictions in Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any the Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, Agreement or any related documents or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and its related documentation;
(2) this Indenture, the Notes Indenture and the GuaranteesSecurities;
(3) purchase money obligations for property acquired in the ordinary course of business that impose encumbrances or restrictions of the nature discussed in clause (3) of Section 4.15(a) on a the property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(5) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is Person, or the Successor Company with respect theretoproperty or assets of the Person, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companyso acquired;
(6) any transfer ofcontracts for the sale of assets, agreement to transferincluding, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(7) Secured secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to clause (1), (4), (11) or (20) of Section 4.104.10(b);
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant of the type referred to in clauses (1), (2) and (3) of Section 4.15(a) imposed by any agreementamendments, instrument modifications, restatements, renewals, increases, supplements, refundings, replacements or obligation refinancings of the contracts, instruments or obligations referred to in clauses (a “Refinancing Agreement”I) effecting an extensionthrough (11) of this Section 4.15(b), provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer’s Board of Directors, no more restrictive 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 of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer)refinancing;
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any such Securitization Subsidiary;; or
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 2 contracts
Sources: Indenture (Warner Alliance Music Inc), Indenture (LEM America, Inc)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The the Issuer will shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of Restricted Subsidiary (1) on its Restricted Subsidiaries that are Guarantors, Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect on the Completion Date, and (xB) contractual encumbrances or restrictions pursuant to any the Credit AgreementAgreement and the other Credit Agreement Documents and, the Existing Unsecured Notesin each case, any Hedging Obligations, similar contractual encumbrances or restrictions or any related documents amendments, modifications, restatements, renewals, supplements, refundings, replacements or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentationrefinancings of such agreements or instruments;
(2) this Indenture, the Secured Notes Indenture, the Notes and the GuaranteesSecured Notes;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by suppliers, customers or suppliers landlords under contracts entered into in the ordinary course of businessbusiness or consistent with past practice or industry norm or arising in connection with any Permitted Liens;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of businessbusiness or consistent with past practice or industry norm;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in Section 4.05(c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business or consistent with past practice or industry norm;
(11) in the case of Section 4.05(c) above, any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including without limitation, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant contained in any Permitted Securitization Document with respect to any agreementSpecial Purpose Securitization Subsidiary;
(13) other Indebtedness, instrument Disqualified Stock or obligation Preferred Stock (a) of the Issuer or any Restricted Subsidiary that is a “Refinancing Agreement”Guarantor or a Foreign Subsidiary or (b) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument Restricted Subsidiary that is not a Guarantor or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such Refinancing Agreement agreement or Amendment taken as a whole are instrument will not materially less favorable adversely affect the Issuer’s ability to make anticipated principal or interest payments on the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates Notes (as determined in good faith by the Issuer);
; provided that in the case of each of clauses (13a) any encumbrance and (b), such Indebtedness, Disqualified Stock or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only Preferred Stock is permitted to any Securitization Subsidiarybe Incurred subsequent to the Issue Date pursuant to Section 4.03;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(15) any tradingencumbrances or restrictions of the type referred to in Section 4.06(a), netting(b) or (c) above imposed by any amendments, operatingmodifications, constructionrestatements, servicerenewals, supplyincreases, purchasesupplements, sale refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (14) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, not materially more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend or other agreement payment restrictions prior to which such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary to other Indebtedness Incurred by the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does shall not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing be deemed a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal loans or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 1 contract
Sources: Indenture (Chart Industries Inc)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Holdings shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Holdings or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to the Credit Agreement, the other Senior Credit Documents, the Existing Indebtedness Debentures, the Existing Second Lien Notes, the Existing Senior Secured Notes and related documentationthe guarantees thereof;
(2) this Indenture, the Notes (and any Exchange Notes and guarantees thereof), the Security Documents and the GuaranteesIntercreditor Agreement;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Holdings or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toits Subsidiaries, or Lien on, any the property or assets of the Issuer Person or any Restricted Subsidiary not otherwise prohibited by this Indentureits Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such SubsidiaryRestricted Subsidiary pending the closing of such sale or disposition;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations or Capitalized Lease Obligations, in each case for property so acquired or leased in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleases, licenses or asset sale agreements leases and other agreementssimilar agreements entered into in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property subject to such lease;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Parent Guarantor shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors Subsidiary to, directly create or indirectly, create otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock Equity Interests to the Issuer Parent Guarantor or any of its other Restricted Subsidiaries that are Guarantors, or with respect to any other interest or participation in, or measured by, its profits, or Subsidiary;
(ii) pay any Indebtedness Debt owed to the Issuer Parent Guarantor or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary;
(2iii) make loans or advances to the Issuer Parent Guarantor or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3iv) sell, lease or transfer any of its properties property or assets to the Issuer Parent Guarantor or any of its other Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiary.
(b) However, The restrictions contained in Section 4.15(a5.11(a) will shall not apply to any encumbrances or restrictions:
(i) existing on the Issue Date in the Credit Agreement, the Indenture or any other agreements in effect on the Issue Date, and any amendments, modifications, restatements, extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the amendment, modification, restatement, extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Holders of the Notes than the encumbrances or restrictions consisting ofbeing amended, modified, restated, extended, renewed, replaced or refinanced;
(ii) existing pursuant to the Indenture, the Notes or the Note Guaranty;
(iii) existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreementof applicable law, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentation;
(2) this Indenture, the Notes and the Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(5iv) existing under any agreements or other instruments of, or with respect to
(A) any agreement or other instrument of a Person, or relating to Indebtedness the property or Capital Stock assets of a any Person, which at the time the Person is acquired by or merged or consolidated with or into the Issuer Parent Guarantor or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or or
(B) any Restricted Unrestricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation it is designated or transaction (except is deemed to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or become a Restricted Subsidiary; which encumbrances or restrictions (i) are not applicable to any other Person or the property or assets of any other Person and (ii) were not put in place in anticipation of such event and any amendments, modifications, restatements, extensions, renewals, replacements or refinancings of any of the foregoing, provided that the encumbrances and restrictions in the amendment, modification, restatement, extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the case may beHolders of the Notes than the encumbrances or restrictions being amended, when such Person becomes such Successor Companymodified, restated, extended, renewed, replaced or refinanced;
(6v) of the type described in Section 5.11(a)(iv) arising or agreed to (i) in the ordinary course of business that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or similar contract, including with respect to intellectual property, (ii) that restrict in a customary manner, pursuant to provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements, the transfer of ownership interests in, or assets of, such partnership, limited liability company, joint venture or similar Person or (iii) by virtue of any Lien on, or agreement to transfer, option or similar right with respect to, or Lien on, to any property or assets of of, the Issuer Parent Guarantor or any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions Subsidiary;
(vi) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock of, or property and assets of, the Restricted Subsidiary pending closing of such Subsidiarysale or disposition that is permitted hereunder;
(7vii) Secured Indebtedness otherwise permitted to be incurred consisting of customary restrictions pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtednessany Permitted Receivables Financing;
(8) viii) existing pursuant to Permitted Refinancing Debt; provided that the encumbrances and restrictions contained in the agreements governing such Permitted Refinancing Debt are, taken as a whole, no less favorable in any material respect to the Holders of the Notes than those contained in the agreements governing the Debt being refinanced;
(ix) consisting of restrictions on cash or other deposits or net worth imposed by customers customers, suppliers or suppliers under contracts entered into required by insurance surety bonding companies, in each case, in the ordinary course of business;
(9x) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date existing pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the purchase money obligations for property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to acquired in the ordinary course of business and does not detract from Capital Leases or operating leases or Specified Coal Agreements or Mining Leases that impose encumbrances or restrictions noted in Section 5.11(a)(iv) on the value of property so acquired or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiarycovered thereby;
(20xi) existing pursuant to any Debt Incurred by, or other agreement of, a Foreign Restricted Subsidiary, which encumbrances or restrictions are customary for a financing or agreement of such type;
(xii) existing pursuant to customary provisions restricting dispositions in joint venture, operating or similar agreements, asset sale agreements and stock sale agreements required in connection with the entering into of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiarysuch transaction; or
(21xiii) an existing pursuant to any agreement or instrument relating to any Indebtedness incurred Debt permitted to be Incurred subsequent to the Issue Date by Section 5.09 (iA) if the encumbrances and restrictions contained in any such agreement or instrument are, taken as a whole are not materially whole, no less favorable in any material respect to the Holders of the Notes than the encumbrances and restrictions contained in agreements the Credit Agreement in effect on as of the Issue Date (as determined in good faith by the IssuerParent Guarantor) or (iiB) if such encumbrance or restriction is not materially more disadvantageous encumbrances and restrictions are, taken as a whole, no less favorable in any material respect to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Issuer) Parent Guarantor), and either (x) the Issuer Parent Guarantor determines in good faith that such encumbrance or restriction encumbrances and restrictions will not materially affect the IssuerCompany’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessas and when they become due.
Appears in 1 contract
Sources: First Supplemental Indenture (Cloud Peak Energy Resources LLC)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Issuers may not, and will may not permit any of its Restricted Subsidiaries that are not Guarantors toSubsidiary, directly or indirectly, to 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:
(1i) pay dividends or make any other distributions to the Issuers or any of their Restricted Subsidiaries on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, or with respect to any other interest or participation in, or measured by, its profits, or ;
(ii) pay any Indebtedness indebtedness owed to the Issuer Issuers or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2iii) make loans or advances to the Issuer Issuers or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3iv) sell, lease or transfer any of its properties or assets to the Issuer Issuers or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiary.
(b) HoweverNotwithstanding the foregoing, Section 4.15(a) will not apply the Issuers may, and may permit any Restricted Subsidiary to, suffer to encumbrances exist any such encumbrance or restrictions consisting of, or existing under or by reason of:
restriction (1) contractual encumbrances or restrictions in effect (xi) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) agreement in effect on the Issue Date, including, without limitation, ; (ii) pursuant to Existing Indebtedness an agreement relating to any Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and related documentation;
its Subsidiaries; (2iii) pursuant to an agreement effecting a Refinancing of Debt Incurred pursuant to an agreement referred to in clause (i) or (ii) above or clause (iv) below, provided, however, that the provisions contained in such Refinancing agreement relating to such encumbrance or restriction are no more restrictive taken as a whole (as determined in good faith by the Chief Financial Officer of Globalstar) than the provisions contained in the predecessor agreement the subject thereof; (iv) in the case of clause (iii) of Section 4.06(a), consisting of restrictions contained in any security agreement (including a Capital Lease Obligation) securing Debt of the Issuers or a Restricted Subsidiary otherwise 47 40 permitted under this Indenture, but only to the Notes and the Guarantees;
(3) purchase money obligations that impose extent such encumbrances or restrictions on a restrict the transfer of the property so acquired;
subject to such security agreement; (4v) applicable law or any applicable rulein the case of clause (iv) of Section 4.06(a), regulation or order;
(5) any agreement or other instrument consisting of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction customary nonassignment provisions entered into in connection with any such acquisitionthe ordinary course of business in leases governing leasehold interests, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except but only to the extent that such Indebtedness was incurred to finance, provisions restrict the transfer of the lease or otherwise in connection with, such acquisition, merger, consolidation or transaction)the property thereunder; provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company vi) with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or to a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary imposed pursuant to an agreement that which has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary;
(7) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that after giving effect to such restrictions apply only transaction no Default shall have occurred or be continuing, that such restriction terminates if such transaction is not consummated and that such consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into; (vii) imposed pursuant to applicable law or regulations; (viii) imposed pursuant to this Indenture and the Securities; or (ix) consisting of any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, on the sale or other agreement to which the Issuer or any disposition of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken securing Debt as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect result of a payment Permitted Lien on such assets or financial covenant relating to such Indebtednessproperty.
Appears in 1 contract
Sources: Indenture (Globalstar Capital Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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 the Issuer or any such Restricted Subsidiary to:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of Restricted Subsidiary (1) on its Restricted Subsidiaries that are Guarantors, Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Credit Agreement Documents;
(2) this Indenture, the Notes (and the Guaranteesany Exchange Notes and guarantees thereof);
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business;
(10) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15a) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer that is a Note Guarantor or such Restricted Subsidiary;
(20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the Subsidiary that is not a Note Guarantor so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined in good faith by the Issuer), provided that in the case of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.03;
(y13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(14) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above 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 (13) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if a default occurs refinancings are, in the good faith judgment of the Issuer, no more restrictive with respect of a payment or financial covenant relating to such Indebtednessdividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (2) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Senior Credit Documents;
(2) this Indenture, the Securities (and any Exchange Securities and guarantees thereof) and the Note Purchase Agreement and the indenture relating to the Senior Notes and the GuaranteesSenior Notes (and any exchange Senior Notes and guarantees thereof);
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer Person, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such SubsidiaryRestricted Subsidiary pending the closing of such sale or disposition;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature discussed in Section 4.05(c) above on the property so acquired;
(10) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business that impose restrictions of the type described in clause (c) above on the property subject to such lease;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries.
(a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors Subsidiary to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock Equity Interests to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness liabilities owed to the Issuer Company or any of its other Restricted Subsidiaries that are Guarantors;Subsidiary;
(2) make loans or advances advances, or guarantee any such loans or advances, to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary; oror
(3) sell, lease or transfer any of its properties or assets to the Issuer Company or any of its other Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction.Subsidiary.
(b) However, Section 4.15(aThe restrictions set forth in paragraph (a) will above shall not apply to encumbrances or restrictions consisting of, or existing under or by reason of::
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to agreements governing Existing Indebtedness and related documentation;Credit Facilities as in effect on October 8, 2003 and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided, however, 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 and Credit Facilities, as in effect on October 8, 2003;
(2) this Indenture, the Notes Indenture and the Guarantees;Notes;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;;
(54) any agreement or other instrument of a Person, or relating to governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time such Person becomes a Restricted Subsidiary of such acquisition, merger, consolidation or transaction the Company (except to the extent that such Indebtedness or Capital Stock was Incurred or issued in connection with or in contemplation of such Person becoming a Restricted Subsidiary), which encumbrance or restriction is not applicable to the Company or any other Restricted Subsidiary of the Company, or the properties or assets of the Company or any other Restricted Subsidiary of the Company, other than the Person, or the property or assets of such Person; provided, however, that, in the case of Indebtedness, such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes permitted by the terms of this clause (5), if a Person other than Indenture to be Incurred at the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of time such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or becomes a Restricted Subsidiary, as ;
(5) customary non-assignment provisions in leases entered into in the case may be, when such Person becomes such Successor Company;ordinary course of business and consistent with past practices;
(6) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any purchase money obligations for property or assets acquired in the ordinary course of business that impose restrictions on the property so acquired of the Issuer or nature described in clause (3) of paragraph (a) above;
(7) any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending its sale or assets of such Subsidiary;other disposition;
(78) Permitted Refinancing Indebtedness; provided, however, 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; provided, further, however, that if such Permitted Refinancing Indebtedness could not be entered into on commercially reasonable terms without the inclusion of dividend and other payment restrictions that are materially more restrictive than those contained in the existing Indebtedness (as determined in good faith by the Board of Directors of the Company), the Company or its Restricted Subsidiary may enter into such Permitted Refinancing Indebtedness, provided that the dividend and other payment restrictions contained therein will not materially impair the Company’s ability to make payments on the Notes (as determined in good faith by the Board of Directors of the Company);
(9) Secured Liens securing Indebtedness otherwise that is permitted to be incurred secured without also securing the Notes or the applicable Subsidiary Guarantee pursuant to Sections 4.10 and 4.12 Section 4.11 hereof that limits limit the right of the debtor to dispose of the assets securing subject to any such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10Lien;
(10) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement on cash or other modification to an Initial Agreement deposits or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith net worth imposed by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party customers under contracts entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(1612) customary provisions restricting subletting any Indebtedness or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in pursuant to which such Indebtedness was issued if (A) the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises applies only upon a payment or is agreed to in the ordinary course financial covenant default or event of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions default contained in any such agreement Indebtedness or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date agreement, (as determined in good faith by the IssuerB) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the IssuerBoard of Directors of the Company) and either (xC) the Issuer determines in good faith that such encumbrance or restriction will not materially affect impair the IssuerCompany’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs as determined in respect good faith by the Board of a payment or financial covenant relating to such Indebtedness.Directors of the Company); and
Appears in 1 contract
Sources: Indenture (Videotron Ltee)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Subject to the provisions of Section 4.08(b) below, the Main Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors Subsidiary to, directly create or indirectly, create otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock Equity Interests to the Main Issuer or any of its Restricted Subsidiaries that are Guarantors, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2) pay any Debt or other liabilities owed to the Issuers or any other Subsidiary;
(3) make loans or advances to the Issuer Issuers or any of its Restricted Subsidiaries that are Guarantorsother Subsidiary; or
(34) sell, lease or transfer any of its properties property or assets to the Main Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiary.
(b) However, The restrictions in Section 4.15(a4.08(a) hereof will not apply to any encumbrances or restrictions:
(1) existing pursuant to the Term Loan Facility 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, no less favorable in any material respect to the Holders than the encumbrances or restrictions consisting ofbeing amended, modified, restated, extended, renewed, replaced or refinanced;
(2) existing pursuant to this Indenture, the Notes or the Security Documents;
(3) existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreementof applicable law, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentation;
(2) this Indenture, the Notes and the Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) existing under any agreement agreements or other instrument of a instruments of, or with respect to any Person, or relating to Indebtedness the property or Capital Stock assets of a any Person, which at the time the Person is acquired by or merged or consolidated with or into the Issuer Wilpinjong Opco or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companyits Subsidiaries;
(65) of the type described in Section 4.08(a)(4) arising or agreed to (i) in the ordinary course of business that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or similar contract, including with respect to intellectual property, (ii) that restrict in a customary manner, pursuant to provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements, the transfer of ownership interests in, or assets of, such partnership, limited liability company, Joint Venture or similar Person or (iii) by virtue of any Lien on, or agreement to transfer, option or similar right with respect to, or Lien on, to any property or assets of the Issuer of, Wilpinjong Opco or any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions of its Subsidiaries;
(6) with respect to a Subsidiary Wilpinjong Opco and its Subsidiaries and imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock of, or property and assets of, the Subsidiary pending closing of such Subsidiarysale or disposition that is permitted by this Indenture;
(7) Secured Indebtedness otherwise permitted to be incurred existing pursuant to Sections 4.10 any agreement with the Wilpinjong Mine Customer in effect on the Issue Date and 4.12 any amendment, modification, restatement, extension, renewal or replacement of any such agreement that limits is no less favorable in any material respect to the right of Holders than the debtor to dispose of agreement in effect on the assets securing such IndebtednessIssue Date;
(8) existing pursuant to Permitted Refinancing Debt; provided that the encumbrances and restrictions contained in the agreements governing such Permitted Refinancing Debt are, taken as a whole, no less favorable in any material respect to the Holders than those contained in the agreements governing the Debt being refinanced;
(9) consisting of restrictions on cash or other deposits or net worth imposed by customers non-financial lessors, customers, suppliers or suppliers under contracts entered into required by insurance surety bonding companies or in connection with any reclamation activity of the Main Issuer or a Subsidiary, in each case, in the ordinary course of business;
(910) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date existing pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the purchase money obligations for property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to acquired in the ordinary course of business and does not detract from Finance Leases or operating leases or Mining Leases that impose encumbrances or restrictions discussed in Section 4.08(a)(4) on the value of property so acquired or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiarycovered thereby;
(2011) [reserved];
(12) existing pursuant to customary provisions restricting dispositions in joint venture, operating or similar agreements, asset sale agreements and stock sale agreements required in connection with the entering into of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; orsuch transaction;
(2113) an existing pursuant to any agreement or instrument relating to any Indebtedness incurred Debt permitted to be Incurred subsequent to the Issue Date (i) by Section 4.09 hereof if the such encumbrances and restrictions contained in any such agreement or instrument are, taken as a whole are not materially whole, no less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous any material respect to the Holders than is customary in comparable financings (as determined in good faith by the Main Issuer) ), and either (x) the Main Issuer determines in good faith that such encumbrance or restriction encumbrances and restrictions will not materially affect the Issuer’s Issuers’ ability to make principal or interest payments on the Notes as and when they become due; and
(14) existing under or (y) by reason of any Debt secured by a Lien permitted to be Incurred pursuant to Section 4.09 and Section 4.12 hereof that limit the right of Wilpinjong Opco or any of its Subsidiaries to dispose of the assets securing such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such IndebtednessDebt.
Appears in 1 contract
Sources: Indenture (Peabody Energy Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors Subsidiary to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock Equity Interests to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary;
(2) make loans or advances advances, or guarantee any such loans or advances, to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Issuer Company or any of its other Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiary.
(b) However, Section 4.15(aThe restrictions set forth in paragraph (a) will above shall not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions agreements governing Existing Indebtedness and Credit Facilities as in effect (x) pursuant on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; PROVIDED, HOWEVER, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to any such dividend and other payment restrictions than those contained in such Existing Indebtedness and Credit AgreementFacilities, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) as in effect on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentation;
(2) this Indenture, the Notes Indenture and the GuaranteesNotes;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Company or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction acquisition (except to the extent that such Indebtedness or Capital Stock was Incurred or issued 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, HOWEVER, that, in the case of Indebtedness, such Indebtedness was incurred permitted by the terms of this Indenture to finance, or otherwise in connection with, be Incurred at the time of such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause ;
(5), if a Person other than ) customary non-assignment provisions in leases entered into in the Issuer is the Successor Company ordinary course of business and consistent with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companypast practices;
(6) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any purchase money obligations for property or assets acquired in the ordinary course of business that impose restrictions on the property so acquired of the Issuer or nature described in clause (3) of paragraph (a) above;
(7) any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending its sale or assets of such Subsidiaryother disposition;
(78) Permitted Refinancing Indebtedness; PROVIDED, HOWEVER, that any restrictions contained in the agreements governing such Permitted Refinancing Indebtedness shall be no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(9) Secured Liens securing Indebtedness otherwise that is permitted to be incurred secured without also securing the Notes or the applicable Subsidiary Guarantee pursuant to Sections 4.10 and 4.12 Section 4.11 hereof that limits limit the right of the debtor to dispose of the assets securing subject to any such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10Lien;
(10) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement on cash or other modification to an Initial Agreement deposits or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith net worth imposed by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party customers under contracts entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;and
(1612) customary provisions restricting subletting any Indebtedness or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in pursuant to which such Indebtedness was issued if the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises applies only upon a payment or is agreed to in the ordinary course financial covenant default or event of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions default contained in any such Indebtedness or agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the IssuerA) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the IssuerBoard of Directors of the Company) and either or (xB) management of the Issuer determines in good faith Company delivers to the Trustee an Officers' Certificate evidencing its determination at the time such agreement is entered into, that such encumbrance or restriction will not materially affect impair the Issuer’s Company's ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such IndebtednessNotes.
Appears in 1 contract
Sources: Indenture (Sun Media Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) or entered into on the Issue Date or entered into in connection with the refinancing of the existing Indebtedness of Intelsat J▇▇▇▇▇▇, including pursuant to the Credit Agreement and the other Senior Credit Documents, any Backstop Credit Facility, the Intelsat J▇▇▇▇▇▇ Unsecured Credit Agreement and the Outstanding Intelsat J▇▇▇▇▇▇ Notes and pursuant to documents and agreements relating to the Outstanding Intelsat Sub Holdco Notes, the Existing Holdings Notes, and the Lockheed Note, the New Intelsat J▇▇▇▇▇▇ Unsecured Credit Agreement, the Existing Unsecured Intelsat J▇▇▇▇▇▇ Notes and the Acquisition Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentation;
(2) this Indenture, Indenture and the Notes (and the Guaranteesany Exchange Notes and guarantees thereof);
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer Person, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements (including customary provisions in agreements relating to any Joint Venture);
(9) other Indebtedness or Preferred Stock (i) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to nature discussed in clause (c) above on the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10property so acquired;
(10) customary provisions contained in joint venture agreements leases, licenses, contracts and other similar agreements entered into in the ordinary course of businessbusiness that impose restrictions of the type described in clause (c) above on the property subject to such lease;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization FinancingReceivables Financing that, in the good faith judgment of the Issuer, are necessary or advisable in connection therewith; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) other Indebtedness, Disqualified Stock or Preferred Stock of any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets Subsidiary of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred Incurred subsequent to the Issue Date (i) if the and permitted pursuant to Section 4.03; provided that such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined by the Issuer in good faith);
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; and
(14) any encumbrances or restrictions of the type referred to in clauses (ya), (b) and (c) above 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 (13) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if refinancings are, in the good faith judgment of the Issuer, no more restrictive as a default occurs in whole with respect of a payment or financial covenant relating to such Indebtednessencumbrances and restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this covenant, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on ordinary shares shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (Intelsat LTD)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors (other than the Guarantors) 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 (other than the Guarantors) to:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, on its Capital Stock; or with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) Subsidiaries. However, Section 4.15(a) the preceding restrictions will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) contractual encumbrances or restrictions of the Issuer or any of its Restricted Subsidiaries in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including (1) pursuant to the Senior Credit Agreement and the other documents relating to the Senior Credit Agreement, (2) pursuant to the Existing Indebtedness Notes Indenture, the Existing Notes and the guarantees thereof and (3) related documentationSwap Contracts;
(2ii) this Indenture, the Notes Notes, the Guarantees and the Guaranteesother documents relating to this Indenture;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4iii) applicable law or any applicable rule, regulation or order;
(5iv) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged merged, amalgamated or consolidated with or into the Issuer or any Restricted Subsidiary, Subsidiary that was in existence at the time of such acquisition (or which agreement at the time it merges with or instrument is assumed by into the Issuer or any Restricted Subsidiary or assumed in connection with an the acquisition of assets from such Person (but, in each case, not created in contemplation thereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other transaction entered into than the Person, or the property or assets of the Person, so acquired or designated; provided that in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, a merger, amalgamation or consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes of under this clause (5iv), if a Person other than the Issuer or such Restricted Subsidiary is the Successor Company successor company with respect theretoto such merger, amalgamation or consolidation, any Subsidiary thereof or agreement or instrument of such Person or any Subsidiary of such Subsidiary Person, shall be deemed acquired or assumed, as the case may be, by the Issuer or a such Restricted Subsidiary, as the case may be, when at the time of such Person becomes such Successor Companymerger, amalgamation or consolidation;
(6v) any transfer of, agreement customary encumbrances or restrictions contained in contracts or agreements for the sale of assets applicable to transfer, option or right with respect to, or Lien on, any property or such assets pending consummation of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenturesuch sale, including without limitation, customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary;
(7vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) customary provisions in operating or other similar agreements, asset sale agreements and stock sale agreements entered into in connection with the entering into of such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(viii) purchase money obligations for property acquired and Capitalized Lease Obligations entered into in the ordinary course of business, to the extent such obligations impose restrictions of the nature discussed in Section 3.6(c) on the property so acquired;
(ix) customary provisions contained in leases, sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in Section 3.6(c) on the property subject to such lease;
(x) any encumbrance or restriction effected in connection with a Qualified Receivables Financing that, in the good faith determination of the Issuer, is necessary or advisable to effect such Qualified Receivables Financing;
(xi) other Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any Restricted Subsidiary that is Incurred subsequent to the Issue Date pursuant to Section 3.3; provided that (1) such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined by the Issuer or a direct or indirect parent of the Issuer in good faith) or (2) such encumbrances and restrictions contained in any agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in this Indenture or the Senior Credit Agreement (as determined by the Issuer in good faith);
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 3.3 and 4.12 that limits 3.5 to the extent limiting the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13xiii) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance arising or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business business, not relating to any Indebtedness, and does not that do not, individually or in the aggregate, (x) detract from the value of the property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) Subsidiary or (iiy) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make future principal or interest payments on the Notes Notes, in each case, as determined by the Issuer in good faith;
(xiv) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to the applicable joint venture; and
(yxv) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) of this Section 3.6 imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiv) of this Section 3.6; provided that such encumbrance encumbrances and restrictions contained in any such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or restriction applies only if refinancing are, in the good faith judgment of the Issuer, not materially more restrictive, taken as a default occurs in respect of a payment or financial covenant relating whole, than the encumbrances and restrictions prior to such Indebtednessamendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 3.6, (i) 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 (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Holdings shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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 Issuer or Restricted Subsidiary to:
(1a) (i) pay dividends or make any other distributions to Holdings or any Restricted Subsidiary (1) on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to the Existing Indebtedness Senior Notes (including any guarantee thereof), the Second Lien Term Facility (including any guarantee thereof) and related documentationthe 2024 Priority Senior Secured Notes (including any guarantee thereof) and the 2025 Senior Secured Notes (including any guarantee thereof) and (B) contractual encumbrances or restrictions pursuant to the Credit Agreement and the other Credit Agreement Documents and, in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes and or the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Holdings or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business;
(11) in the case of clause (c) above, any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 1 contract
Sources: Indenture (EP Energy Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, profits or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital StockSubsidiaries, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentation;
(2) this Indenture, the Notes and Guarantees, the GuaranteesSecurities, the Security Documents or the Intercreditor Agreements;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary that was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or guarantees utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer Person, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition Disposition of the Capital Stock or assets of such SubsidiaryRestricted Subsidiary pending the closing of such Disposition;
(76) documents relating to any Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits 4.11, which restrictions are restrictions on the right transfer of the debtor to dispose of the assets securing such Secured Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements agreements, collaboration agreements, intellectual property licenses and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business;
(10) customary provisions contained in leases, subleasescontracts, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business (including non-assignment provisions);
(1211) other Indebtedness, Disqualified Stock or Preferred Stock (a) of the Issuer or any encumbrances Restricted Subsidiary of the Issuer that is a Guarantor or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”b) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or Restricted Subsidiary that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the not a Guarantor so long as such encumbrances and restrictions contained in any such Refinancing Agreement agreement or Amendment taken as a whole are instrument will not materially less favorable affect the Issuer’s ability to make anticipated principal or interest payments on the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates Securities (as determined in good faith by the Issuer), provided that in the case of each of clauses (a) and (b) above, such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date under Section 4.03;
(12) any Permitted Investment (to the extent such encumbrance or restriction was not made in contemplation of such Permitted Investment and was in existence on the date of such Permitted Investment);
(13) any encumbrance customary provisions imposed on the transfer of copyrighted or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiarypatented materials;
(14) any encumbrance encumbrances or restriction restrictions of the type referred to in connection clauses (a), (b) and (c) above 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 (13) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, no more restrictive with Non-Recourse Product Financing Indebtedness respect to such dividend and other payment restrictions than those contained in the dividend or Non-Recourse Acquisition Financing Indebtedness;other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; or
(15) any tradingApomorphine Royalty Disposition to a Royalty Subsidiary. For purposes of determining compliance with this Section 4.05, netting, operating, construction, service, supply, purchase, sale (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on other agreement Capital Stock shall not be deemed a restriction on the ability to which make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness Incurred by the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does shall not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing be deemed a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal loans or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit otherwise cause to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Company or any of its Restricted Subsidiaries that are Guarantors, on its Capital Stock or with respect to any other interest or participation in, 505298\0057\02050\969WL85X.NPA or measured by, its profits, profits or (ii) pay any Indebtedness Debt owed to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease lease, or transfer any of its properties or assets to the Issuer Company, or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital StockSubsidiaries, or subordination of any obligation except (including the application of any remedy bars theretoin each case) to any other obligation, will not be deemed to constitute for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) on the Closing Date, including pursuant to any the Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness Agreement and its related documentation;
(2) this Indenture, the Notes Agreement and the GuaranteesNotes;
(3) by reason of customary non-assignment or subletting provisions in leases entered into in the ordinary course of business and consistent with past practices;
(4) purchase money obligations for property acquired in the ordinary course of business that impose encumbrances or restrictions on a property so acquired;
(45) applicable law or any applicable rule, regulation or order;
(56) any agreement or other instrument of a Person, or relating to Existing Indebtedness and Debt or Capital Stock of a Person, which Person is Restricted Subsidiaries that are acquired by or merged or consolidated with or into the Issuer Company or any of its Restricted Subsidiary, Subsidiaries after the Issuance Date; provided that such Debt or which agreement or instrument Capital Stock is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition and was not incurred, merger, consolidation assumed or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise issued in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument contemplation of such Person acquisition or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companymerger;
(67) other Debt permitted to be incurred subsequent to the Closing Date pursuant to Section 6.11; provided that any transfer of, agreement to transfer, option or right such restrictions are ordinary and customary with respect toto the type of Debt being incurred (under the relevant circumstances);
(8) contracts for the sale of assets, or Lien onincluding, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, limitation customary restrictions with respect to a Restricted Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(79) Secured Indebtedness secured Debt otherwise permitted to be incurred pursuant to Sections 4.10 the covenants described under Section 6.11 and 4.12 Section 6.12 that limits limit the right of the debtor to dispose of the assets securing such IndebtednessDebt;
(8) 10) customary provisions contained in leases and other agreements entered into in the ordinary course of business; 505298\0057\02050\969WL85X.NPA
(11) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;; and
(12) any encumbrances or restrictions pursuant imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to any agreementin clauses (1) through (11) above, instrument provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or obligation (a “Refinancing Agreement”) effecting an extensionrefinancings are, in the good faith judgment of the Company's Board of Directors, no more restrictive 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 placement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessrefinancing.
Appears in 1 contract
Sources: Senior Subordinated Note Purchase Agreement (Hanger Orthopedic Group Inc)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Holdings shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiaries.
(b) However, the preceding restrictions in Section 4.15(a) will shall not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any the Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, Agreement or any related documents as in effect on the Issue Date or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentation;
(2) this Indenture, the Notes and the Guarantees (including any Exchange Notes with respect to the Notes and related Guarantees);
(3) purchase money obligations or other obligations described in clause (4) of Section 4.10(b) for property acquired in the ordinary course of business that in each case impose encumbrances or restrictions of the nature discussed in clause (3) of Section 4.15(a) on a the property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(5) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Holdings or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in connection therewith or in contemplation thereof or to provide all or a portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is Person, or the Successor Company with respect theretoproperty or assets of the Person, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companyso acquired;
(6) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets contracts for the sale of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indentureassets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(7) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of Holdings, the Issuer Company, the Co-issuer or any Restricted Subsidiary that is a Guarantor Guarantor, in each case that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer Holdings subsequent to the Issue Date pursuant to Section 4.104.10 hereof;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;; and
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation the type referred to in 4.15(b)(1clauses (1), (2) and (3) of Section 4.15(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 (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”)above; provided that the encumbrances or restrictions imposed by such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of Holdings’ Board of Directors, not materially less favorable to the holders of the Notes than encumbrances and restrictions contained in any such Refinancing Agreement or Amendment predecessor agreements and do not affect the Issuers’ and Guarantors’ ability, taken as a whole whole, to make payments of interest and scheduled payments of principal in respect of the Notes, in each case as and when due; provided further, however, that with respect to agreements existing on the Issue Date, any refinancings or amendments thereof contain such encumbrances or restrictions that are not materially less favorable to the Holders holders of the Notes than the encumbrances and or restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (agreements as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such IndebtednessDate.
Appears in 1 contract
Sources: Indenture (Warner Chilcott PLC)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors (other than the Guarantors) 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 (other than the Guarantors) to:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, on its Capital Stock; or with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) Subsidiaries. However, Section 4.15(a) the preceding restrictions will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) contractual encumbrances or restrictions of the Issuer or any of its Restricted Subsidiaries in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including (1) pursuant to the Senior Credit Agreement and the other documents relating to the Senior Credit Agreement, (2) pursuant to the Existing Indebtedness Notes Indentures, the Existing Notes and the guarantees thereof and (3) related documentationSwap Contracts;
(2ii) this Indenture, the Notes Notes, the Guarantees and the Guaranteesother documents relating to this Indenture;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4iii) applicable law or any applicable rule, regulation or order;
(5iv) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged merged, amalgamated or consolidated with or into the Issuer or any Restricted Subsidiary, Subsidiary or which agreement an Unrestricted Subsidiary that was designated a Restricted Subsidiary that was in existence at the time of such acquisition (or instrument is assumed by at the time it merges with or into the Issuer or any Restricted Subsidiary or assumed in connection with an the acquisition of assets from such Person (but, in each case, not created in contemplation thereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other transaction entered into than the Person, or the property or assets of the Person, so acquired or designated; provided that in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, a merger, amalgamation or consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes of under this clause (5iv), if a Person other than the Issuer or such Restricted Subsidiary is the Successor Company successor company with respect theretoto such merger, amalgamation or consolidation, any Subsidiary thereof or agreement or instrument of such Person or any Subsidiary of such Subsidiary Person, shall be deemed acquired or assumed, as the case may be, by the Issuer or a such Restricted Subsidiary, as the case may be, when at the time of such Person becomes such Successor Companymerger, amalgamation or consolidation;
(6v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assets applicable to such assets pending consummation of such sale, including customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary;
(vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) customary provisions in operating or other similar agreements, asset sale agreements and stock sale agreements entered into in connection with the entering into of such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(viii) purchase money obligations for property acquired and Capitalized Lease Obligations, to the extent such obligations impose restrictions of the nature discussed in Section 3.6(c) on the property so acquired;
(ix) customary provisions contained in leases, sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in Section 3.6(c) on the property subject to such lease;
(x) any transfer ofencumbrance or restriction effected in connection with a Qualified Receivables Factoring or Qualified Receivables Financing that, agreement in the good faith determination of the Issuer, is necessary or advisable to transfereffect such Qualified Receivables Factoring or Qualified Receivables Financing;
(xi) other Indebtedness, option Disqualified Stock or right with respect to, or Lien on, any property or assets Preferred Stock of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect that is Incurred subsequent to a Subsidiary the Issue Date pursuant to an Section 3.3; provided that (1) such encumbrances and restrictions contained in any agreement that has been entered into for or instrument will not materially affect the sale Issuer’s ability to make anticipated principal or other disposition interest payments on the Notes (as determined by the Issuer or a direct or indirect parent of the Capital Stock Issuer in good faith) or assets (2) such encumbrances and restrictions contained in any agreement or instrument taken as a whole are not materially less favorable to the Holders of such Subsidiarythe Notes than the encumbrances and restrictions contained in this Indenture or the Senior Credit Agreement (as determined by the Issuer in good faith);
(7xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 3.3 and 4.12 that limits 3.5 to the extent limiting the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13xiii) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance arising or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business business, not relating to any Indebtedness, and does not that do not, individually or in the aggregate, (x) detract from the value of the property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) Subsidiary or (iiy) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make future principal or interest payments on the Notes Notes, in each case, as determined by the Issuer in good faith;
(xiv) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to the applicable joint venture; and
(yxv) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) of this Section 3.6 imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiv) of this Section 3.6; provided that such encumbrance encumbrances and restrictions contained in any such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or restriction applies only if refinancing are, in the good faith judgment of the Issuer, not materially more restrictive, taken as a default occurs in respect of a payment or financial covenant relating whole, than the encumbrances and restrictions prior to such Indebtednessamendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 3.6, (i) 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 (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly 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 that is not a Guarantor to:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Holdings or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect (x) or entered into on the Third Restatement Date, including pursuant to any Credit this Agreement, the Existing Unsecured NotesLoan Documents and the other documents relating to this Agreement and related Hedging Obligations and the related documentation, any Hedging Obligations, or any related documents or (y) the term loan credit agreement governing the Fixed Asset Facility incurred on the Issue Date, including, without limitation, pursuant to Existing Indebtedness date hereof and related documentationHedging Obligations and the related documentation and any documents relating to the Senior Notes;
(2ii) this Indenture, the Notes and the Guarantees[Intentionally Omitted];
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4iii) applicable law or any applicable rule, regulation or order;
(5iv) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock capital stock of a Person, which Person is acquired by or merged merged, consolidated or consolidated amalgamated with or into the Issuer Holdings or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction amalgamation, which was in existence at the time of such acquisition or at the time it mergers, consolidates or amalgamates with or into Holdings or any of its Restricted Subsidiaries (except but, in each case, not created in contemplation thereof), which encumbrance or restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(v) contracts for the sale or any Restricted Subsidiary not otherwise prohibited by this Indenturedisposition of assets, including without limitation, customary encumbrances or restrictions with respect to a Subsidiary of (i) Holdings or (ii) any of its Restricted Subsidiaries imposed pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all the Capital Stock or assets of such Subsidiary;
(7vi) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10vii) customary provisions in (x) joint venture agreements and other similar agreements entered into in the ordinary course of businessbusiness with respect to the Equity Interests subject to the joint venture and (y) operating or other similar agreements, asset sale agreements, stock sale agreements entered into in connection with the entering into of such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(11viii) purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations to the extent imposing restrictions of the nature discussed in clause (c) above on the property so acquired;
(ix) customary provisions contained in leases, subleases, licenses or asset sale agreements licenses, sublicenses, contracts and other similar agreements, including with respect to intellectual property and other agreements;
(12x) any encumbrances encumbrance or restrictions restriction contained in any documentation relating to a Permitted Receivables Financing;
(xi) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Borrower that is Incurred subsequent to April 4, 2014 pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”)Section 10.2.2; provided that the such encumbrances and restrictions contained in any such Refinancing Agreement agreement or Amendment taken as a whole are instrument will not materially less favorable affect Holdings’ ability to make anticipated principal or interest payment on the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates Loans (as determined by Holdings in good faith by the Issuerfaith);
(13xii) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable Secured Indebtedness otherwise permitted to the Holders than the encumbrances be Incurred pursuant to Sections 10.2.1 and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness10.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Borrower or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) on the Closing Date, including pursuant to any the Credit AgreementAgreements and the other Senior Credit Documents, and pursuant to documents and agreements relating to the Specified Intercompany Agreements, the Existing Unsecured Intelsat Notes, the Existing Subsidiary Notes (including any Hedging Obligationsexchange notes therefor), or the Intelsat Bermuda Notes (including any related documents or (y) on exchange notes therefor), the Issue Date, including, without limitation, pursuant to Existing Indebtedness Intelsat Bermuda Intercompany Loan and related documentationthe Lockheed Note;
(2) this Indenture, the Notes Agreement and the GuaranteesLoans (and, in each case, any guarantees thereof);
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Borrower or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer Person, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 10.1 and 4.12 10.8 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements (including customary provisions in agreements relating to any Joint Venture);
(9) other Indebtedness or Preferred Stock (i) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to nature discussed in clause (c) above on the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10property so acquired;
(10) customary provisions contained in joint venture agreements leases, licenses, contracts and other similar agreements entered into in the ordinary course of businessbusiness that impose restrictions of the type described in clause (c) above on the property subject to such lease;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization FinancingReceivables Financing that, in the good faith judgment of the Borrower, are necessary or advisable in connection therewith; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) agreements and instruments, including agreements and instruments governing Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Borrower that is Incurred subsequent to the Closing Date and permitted pursuant to
Section 10.1; provided that either (A) the provisions relating to such encumbrance or restriction contained in connection with Non-Recourse Product Financing Indebtedness such agreements or Non-Recourse Acquisition Financing Indebtedness;
(15) any tradinginstruments are no less favorable to the Borrower, nettingtaken as a whole, operating, construction, service, supply, purchase, sale or other agreement to which as determined by the Issuer or any Board of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets Directors of the Issuer Borrower in good faith, than the provisions contained in either Credit Agreement and the other Senior Credit Documents or such Restricted Subsidiary that are in an indenture or agreement governing the subject to such agreementExisting Intelsat Notes, the payment rights arising thereunder Existing Subsidiary Notes, the Intelsat Bermuda Notes, the Intelsat Bermuda Intercompany Loan or the proceeds thereof and does not extend to any other asset Loans in each case, as in effect on the Closing Date or property of the Issuer or (B) such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the IssuerBorrower’s ability to make anticipated principal or interest payments on the Notes Loans (as determined by the Borrower in good faith);
(13) any Restricted Investment not prohibited by Section 10.2 and any Permitted Investment; and
(14) any encumbrances or restrictions of the type referred to in clauses (ya), (b) and (c) above 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 (13) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if refinancings are, in the good faith judgment of the Borrower, no more restrictive as a default occurs in whole with respect of a payment or financial covenant relating to such Indebtednessencumbrances and restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this covenant, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on ordinary shares shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Borrower or a Restricted Subsidiary of the Borrower to other Indebtedness Incurred by the Borrower or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Issuers may not, and will may not permit any of its Restricted Subsidiaries that are not Guarantors toSubsidiary, directly or indirectly, to 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:
(1i) pay dividends or make any other distributions to the Issuers or any of their Restricted Subsidiaries on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, or with respect to any other interest or participation in, or measured by, its profits, or ;
(ii) pay any Indebtedness indebtedness owed to the Issuer Issuers or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2iii) make loans or advances to the Issuer Issuers or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3iv) sell, lease or transfer any of its properties or assets to the Issuer Issuers or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiary.
(b) HoweverNotwithstanding the foregoing, Section 4.15(a) will not apply the Issuers may, and may permit any Restricted Subsidiary to, suffer to encumbrances exist any such encumbrance or restrictions consisting of, or existing under or by reason of:
restriction (1) contractual encumbrances or restrictions in effect (xi) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) agreement in effect on the Issue Date, including, without limitation, ; (ii) pursuant to Existing Indebtedness an agreement relating to any Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and related documentation;
its Subsidiaries; (2iii) pursuant to an agreement effecting a Refinancing of Debt Incurred pursuant to an agreement referred to in clause (i) or (ii) above or clause (iv) below, provided, however, that the provisions contained in such Refinancing agreement relating to such encumbrance or restriction are no more restrictive taken as a whole (as determined in good faith by the Chief Financial Officer of Globalstar) than the provisions contained in the predecessor agreement the subject thereof; (iv) in the case of clause (iii) of Section 4.06(a), 47 41 consisting of restrictions contained in any security agreement (including a Capital Lease Obligation) securing Debt of the Issuers or a Restricted Subsidiary otherwise permitted under this Indenture, but only to the Notes and the Guarantees;
(3) purchase money obligations that impose extent such encumbrances or restrictions on a restrict the transfer of the property so acquired;
subject to such security agreement; (4v) applicable law or any applicable rulein the case of clause (iv) of Section 4.06(a), regulation or order;
(5) any agreement or other instrument consisting of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction customary nonassignment provisions entered into in connection with any such acquisitionthe ordinary course of business in leases governing leasehold interests, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except but only to the extent that such Indebtedness was incurred to finance, provisions restrict the transfer of the lease or otherwise in connection with, such acquisition, merger, consolidation or transaction)the property thereunder; provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company vi) with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or to a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary imposed pursuant to an agreement that which has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary;
(7) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that after giving effect to such restrictions apply only transaction no Default shall have occurred or be continuing, that such restriction terminates if such transaction is not consummated and that such consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into; (vii) imposed pursuant to applicable law or regulations; (viii) imposed pursuant to this Indenture and the Securities; or (ix) consisting of any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, on the sale or other agreement to which the Issuer or any disposition of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken securing Debt as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect result of a payment Permitted Lien on such assets or financial covenant relating to such Indebtednessproperty.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly 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 that is not a Guarantor to:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Holdings or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect (x) or entered into on the Third Restatement Date, including pursuant to any Credit this Agreement, the Existing Unsecured Notes, any Loan Documents and the other documents relating to this Agreement and related Hedging Obligations, or any the related documents or (y) documentation, the Fixed Asset Facility Indenture incurred on the Issue Date, including, without limitation, pursuant to Existing Indebtedness date hereof and related documentationHedging Obligations and the related documentation and any documents relating to the Senior Unsecured Notes;
(2ii) this Indenture, the Notes and the Guarantees[Intentionally Omitted];
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4iii) applicable law or any applicable rule, regulation or order;; -169-
(5iv) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock capital stock of a Person, which Person is acquired by or merged merged, consolidated or consolidated amalgamated with or into the Issuer Holdings or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction amalgamation, which was in existence at the time of such acquisition or at the time it mergers, consolidates or amalgamates with or into Holdings or any of its Restricted Subsidiaries (except but, in each case, not created in contemplation thereof), which encumbrance or restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(v) contracts for the sale or any Restricted Subsidiary not otherwise prohibited by this Indenturedisposition of assets, including without limitation, customary encumbrances or restrictions with respect to a Subsidiary of (i) Holdings or (ii) any of its Restricted Subsidiaries imposed pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all the Capital Stock or assets of such Subsidiary;
(7vi) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10vii) customary provisions in (x) joint venture agreements and other similar agreements entered into in the ordinary course of businessbusiness with respect to the Equity Interests subject to the joint venture and (y) operating or other similar agreements, asset sale agreements, stock sale agreements entered into in connection with the entering into of such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(11viii) purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations to the extent imposing restrictions of the nature discussed in clause (c) above on the property so acquired;
(ix) customary provisions contained in leases, subleases, licenses or asset sale agreements licenses, sublicenses, contracts and other similar agreements, including with respect to intellectual property and other agreements;
(12x) any encumbrances encumbrance or restrictions restriction contained in any documentation relating to a Permitted Receivables Financing;
(xi) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Borrower that is Incurred subsequent to April 4, 2014 pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”)Section 10.2.2; provided that the such encumbrances and restrictions contained in any such Refinancing Agreement agreement or Amendment taken as a whole are instrument will not materially less favorable affect Holdings’ ability to make anticipated principal or interest payment on the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates Loans (as determined by Holdings in good faith by the Issuerfaith);
(13xii) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable Secured Indebtedness otherwise permitted to the Holders than the encumbrances be Incurred pursuant to Sections 10.2.1 and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness10.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Borrower or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) on the Closing Date, including pursuant to any the Credit AgreementAgreements and the other Senior Credit Documents, and pursuant to documents and agreements relating to the Specified Intercompany Agreements, the Existing Unsecured Intelsat Notes, the Existing Subsidiary Indebtedness (including any Hedging Obligationsexchange notes therefor), or the ▇▇▇▇▇▇▇ Notes (including any related documents or (y) on exchange notes therefor), the Issue Date, including, without limitation, pursuant to Existing Indebtedness Intelsat Bermuda Intercompany Loan and related documentationthe Lockheed Note;
(2) the Backstop Credit Agreements, this Indenture, the Notes Agreement and the GuaranteesLoans (and, in each case, any guarantees thereof);
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Borrower or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer Person, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 10.1 and 4.12 10.8 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements (including customary provisions in agreements relating to any Joint Venture);
(9) other Indebtedness or Preferred Stock (i) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to nature discussed in clause (c) above on the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10property so acquired;
(10) customary provisions contained in joint venture agreements leases, licenses, contracts and other similar agreements entered into in the ordinary course of businessbusiness that impose restrictions of the type described in clause (c) above on the property subject to such lease;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization FinancingReceivables Financing that, in the good faith judgment of the Borrower, are necessary or advisable in connection therewith; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) agreements and instruments, including agreements and instruments governing Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Borrower that is Incurred subsequent to the Closing Date and permitted pursuant to Section 10.1; provided that either (A) the provisions relating to such encumbrance or restriction contained in connection with Non-Recourse Product Financing Indebtedness such agreements or Non-Recourse Acquisition Financing Indebtedness;
(15) any tradinginstruments are no less favorable to the Borrower, nettingtaken as a whole, operating, construction, service, supply, purchase, sale or other agreement to which as determined by the Issuer or any Board of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets Directors of the Issuer Borrower in good faith, than the provisions contained in either Credit Agreement and the other Senior Credit Documents or such Restricted Subsidiary that are in an indenture or agreement governing the subject to such agreementExisting Intelsat Notes, the payment rights arising thereunder Existing Subsidiary Indebtedness, the ▇▇▇▇▇▇▇ Notes, the Intelsat Bermuda Intercompany Loan or the proceeds thereof and does not extend to any other asset Loans in each case, as in effect on the Closing Date or property of the Issuer or (B) such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the IssuerBorrower’s ability to make anticipated principal or interest payments on the Notes Loans (as determined by the Borrower in good faith);
(13) any Restricted Investment not prohibited by Section 10.2 and any Permitted Investment; and
(14) any encumbrances or restrictions of the type referred to in clauses (ya), (b) and (c) above 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 (13) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if refinancings are, in the good faith judgment of the Borrower, no more restrictive as a default occurs in whole with respect of a payment or financial covenant relating to such Indebtednessencumbrances and restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this covenant, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on ordinary shares shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Borrower or a Restricted Subsidiary of the Borrower to other Indebtedness Incurred by the Borrower or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Issuers may not, and will may not permit any of its Restricted Subsidiaries that are not Guarantors toSubsidiary, directly or indirectly, to 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:
(1i) pay dividends or make any other distributions to the Issuers or any of their Restricted Subsidiaries on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, or with respect to any other interest or participation in, or measured by, its profits, or ;
(ii) pay any Indebtedness indebtedness owed to the Issuer Issuers or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2iii) make loans or advances to the Issuer Issuers or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3iv) sell, lease or transfer any of its properties or assets to the Issuer Issuers or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiary.
(b) HoweverNotwithstanding the foregoing, Section 4.15(a) will not apply the Issuers may, and may permit any Restricted Subsidiary to, suffer to encumbrances exist any such encumbrance or restrictions consisting of, or existing under or by reason of:
restriction (1) contractual encumbrances or restrictions in effect (xi) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) agreement in effect on the Issue Date, including, without limitation, ; (ii) pursuant to Existing Indebtedness an agreement relating to any Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and related documentation;
its Subsidiaries; (2iii) pursuant to an agreement effecting a Refinancing of Debt Incurred pursuant to an agreement referred to in clause (i) or (ii) above or clause (iv) below, provided, however, that the provisions contained in such Refinancing agreement relating to such encumbrance or restriction are no more restrictive taken as a whole (as determined in good faith by the Chief Financial Officer of Globalstar) than the provisions contained in the predecessor agreement the subject thereof; (iv) in the case of clause (iii) of Section 4.6(a), consisting of restrictions contained in any security agreement (including a Capital Lease Obligation) securing Debt of the Issuers or a Restricted Subsidiary otherwise permitted under this Indenture, but only to the Notes and the Guarantees;
(3) purchase money obligations that impose extent such encumbrances or restrictions on a restrict the transfer of the property so acquired;
subject to such security agreement; (4v) applicable law or any applicable rulein the case of clause (iv) of Section 4.6(a), regulation or order;
(5) any agreement or other instrument consisting of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction customary nonassignment provisions entered into in connection with any such acquisitionthe ordinary course of business in leases governing leasehold interests, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except but only to the extent that such Indebtedness was incurred to finance, provisions restrict the transfer of the lease or otherwise in connection with, such acquisition, merger, consolidation or transaction)the property thereunder; provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company vi) with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or to a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary imposed pursuant to an agreement that which has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary;
(7) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that after giving effect to such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance transaction no Default shall have occurred or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any tradingbe continuing, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance restriction terminates if such transaction is not consummated and that such consummation or abandonment of solely the property or assets such transaction occurs within one year of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any date such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date was entered into; (as determined in good faith by the Issuervii) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.imposed
Appears in 1 contract
Sources: Indenture (Globalstar Capital Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Company or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) entered into on the Issue Date, including, without limitation, including pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other documents relating to the Transactions;
(2) this Indenture, the Notes Securities and the Guaranteesany Exchange Securities and guarantees thereof;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Company or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer Person, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(107) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(118) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(9) customary provisions contained in leases, subleaseslicenses, licenses or asset sale agreements contracts and other agreementssimilar agreements entered into in the ordinary course of business that impose restrictions of the type described in clause (c) above on the property subject to such lease;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(1310) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1411) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest Preferred Stock of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets Subsidiary of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred Company that is Incurred subsequent to the Issue Date (i) if the pursuant to Section 4.03; provided that such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the IssuerCompany’s ability to make anticipated principal or interest payments payment on the Notes Securities (as determined by the Company in good faith);
(12) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment;
(13) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.11 that limit the right of the debtor to dispose of the assets securing such Indebtedness; and
(14) any encumbrances or restrictions of the type referred to in clauses (ya), (b) and (c) above 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 (13) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if refinancings are, in the good faith judgment of the Company, no more restrictive as a default occurs in whole with respect of a payment or financial covenant relating to such Indebtednessdividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to the Company or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, on the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the 8.5% Issue Date, including, without limitation, including pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Credit Agreement Documents;
(2) this Indenture, the Notes (and any Exchange Notes), the Existing First Lien Notes Indenture dated February 14, 2012 and the GuaranteesExisting 8.5% First Lien Notes;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business;
(10) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) other Indebtedness, Disqualified Stock or Preferred Stock (a) of any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets Subsidiary of the Issuer that is a Subsidiary Pledgor or such a Foreign Subsidiary, (b) of any Restricted Subsidiary that are the subject to is not a Subsidiary Pledgor or a Foreign Subsidiary so long as such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are will not materially less favorable affect the Issuer’s ability to the Holders than the encumbrances and restrictions contained in agreements in effect make anticipated principal or interest payments on the Issue Date Notes (as determined in good faith by the Issuer) or (iic) if of any Restricted Subsidiary Incurred in connection with any Project Financing, provided that in the case of each of clauses (a) and (b), such encumbrance Indebtedness, Disqualified Stock or restriction Preferred Stock is not materially more disadvantageous permitted to be Incurred subsequent to the Holders than is customary Existing 8.5% Issue Date pursuant to Section 4.03;
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(14) any encumbrances or restrictions of the type referred to in comparable financings clauses (as determined a), (b) and (c) above 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 (13) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith by judgment of the Issuer) , no more restrictive with respect to such dividend and either 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. For purposes of determining compliance with this Section 4.05, (xi) the Issuer determines priority of any Preferred Stock in good faith that such encumbrance receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction will not materially affect on the Issuer’s ability to make principal distributions on Capital Stock and (ii) the subordination of loans or interest payments advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the Notes ability to make loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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) to pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors(a) on its Capital Stock, or (b) with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are Guarantors;
(2) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are Guarantors; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
: (1a) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to the Pan-U.S. ABL Facility, the Existing Indebtedness Notes, the 2032 Dollar Notes and the related documentation;
documentation in effect on the Issue Date and in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments; (2b) this Indenture, the Notes Securities and the Guarantees;
; (3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4c) applicable law or any applicable rule, regulation or order;
; (5d) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toits Subsidiaries, or Lien on, any the property or assets of the Issuer Person or any Restricted Subsidiary not otherwise prohibited by this Indentureits Subsidiaries, so acquired; (e) contracts or agreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
; (7f) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
; (8) g) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 1 contract
Sources: Indenture (Constellium Se)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors Subsidiary to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock Equity Interests to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness liabilities owed to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary;
(2) make loans or advances advances, or guarantee any such loans or advances, to the Issuer Company or any of its other Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Issuer Company or any of its other Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiary.
(b) However, Section 4.15(aThe restrictions set forth in paragraph (a) will above shall not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to agreements governing Existing Indebtedness and related documentationCredit Facilities as in effect on October 8, 2003 and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; PROVIDED, HOWEVER, 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 and Credit Facilities, as in effect on October 8, 2003;
(2) this Indenture, the Notes Indenture and the GuaranteesNotes;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to governing Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Company or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction acquisition (except to the extent that such Indebtedness or Capital Stock was Incurred or issued 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, HOWEVER, that, in the case of Indebtedness, such Indebtedness was incurred permitted by the terms of this Indenture to finance, or otherwise in connection with, be Incurred at the time of such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause ;
(5), if a Person other than ) customary non-assignment provisions in leases entered into in the Issuer is the Successor Company ordinary course of business and consistent with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companypast practices;
(6) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any purchase money obligations for property or assets acquired in the ordinary course of business that impose restrictions on the property so acquired of the Issuer or nature described in clause (3) of paragraph (a) above;
(7) any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending its sale or assets of such Subsidiaryother disposition;
(78) Permitted Refinancing Indebtedness; PROVIDED, HOWEVER, that any 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;
(9) Secured Liens securing Indebtedness otherwise that is permitted to be incurred secured without also securing the Notes or the applicable Subsidiary Guarantee pursuant to Sections 4.10 and 4.12 Section 4.11 hereof that limits limit the right of the debtor to dispose of the assets securing subject to any such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10Lien;
(10) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement on cash or other modification to an Initial Agreement deposits or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith net worth imposed by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party customers under contracts entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;and
(1612) customary provisions restricting subletting any Indebtedness or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in pursuant to which such Indebtedness was issued if the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises applies only upon a payment or is agreed to in the ordinary course financial covenant default or event of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions default contained in any such Indebtedness or agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the IssuerA) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the IssuerBoard of Directors of the Company) and either (xB) management of the Issuer determines in good faith Company delivers to the Trustee an Officers' Certificate evidencing its determination at the time such agreement is entered into, that such encumbrance or restriction will not materially affect impair the Issuer’s Company's ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such IndebtednessNotes.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Borrower or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) (x) contractual encumbrances or restrictions in effect (x) on the Effective Date, including pursuant to the Senior Notes (including any Credit Agreement, guarantee thereof) and the Existing Unsecured Notes, any Hedging Obligations, or any related documents or Term Loan Agreement and (y) on the Issue Date, including, without limitation, contractual encumbrances or restrictions pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Credit Agreement Documents and, in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2ii) this Indenture, Agreement or the Notes and the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4iii) applicable law or any applicable rule, regulation or order;
(5iv) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Borrower or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(v) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(7vi) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 6.03 and 4.12 6.10 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) vii) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10viii) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11ix) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(x) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business;
(12xi) in the case of clause (c) above, any encumbrances encumbrance or restrictions pursuant to any agreementrestriction that restricts in a customary manner the subletting, instrument assignment or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, instrument or obligation referred the assignment or transfer of any such lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in 4.15(b)(1) through Oil and Gas Properties), license (11) (an “Initial Agreement”including without limitations, licenses of intellectual property) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer)contracts;
(13xii) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(14xiii) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15a) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer Borrower or any Restricted Subsidiary in any manner material to the Issuer that is a Subsidiary Guarantor or such Restricted Subsidiary;
a Foreign Subsidiary or (20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement Subsidiary that is not a Subsidiary Guarantor or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are will not materially less favorable affect the Borrower’s ability to the Holders than the encumbrances and restrictions contained in agreements in effect make anticipated principal or interest payments on the Issue Date Loans (as determined in good faith by the IssuerBorrower), provided that in the case of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Effective Date not in violation of Section 6.03;
(xiv) any Restricted Investment not prohibited by Section 6.04 and any Permitted Investment;
(xv) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”; or
(xvi) any encumbrances or restrictions of the type referred to in clauses (a), (b) or (iic) if above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xv) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction is not materially more disadvantageous to refinancings are, in the Holders than is customary in comparable financings (as determined in good faith by judgment of the Issuer) Borrower, no more restrictive with respect to such dividend and either 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. For purposes of determining compliance with this Section 6.05, (xi) the Issuer determines priority of any Preferred Stock in good faith that such encumbrance receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction will not materially affect on the Issuer’s ability to make principal distributions on Capital Stock and (ii) the subordination of loans or interest payments advances made to the Borrower or a Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any such Restricted Subsidiary shall not be deemed a restriction on the Notes ability to make loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors Subsidiary to, directly create or indirectly, create otherwise cause or permit to exist or become effective any consensual contractual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsStock;
(2) pay any Indebtedness or other obligations owed to the Company;
(3) make any loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsCompany; or
(34) sell, lease or transfer any of its properties property or assets to the Issuer or any Company, except, in the case of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stockclauses (1), or subordination of any obligation (including the application of any remedy bars thereto2), (3) to any other obligation, will not be deemed to constitute such an encumbrance or restriction.
and (b4) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason ofabove:
(1A) contractual encumbrances any encumbrance or restrictions restriction pursuant to (i) applicable law, rule, regulation or order or (ii) an agreement in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, at or any related documents or (y) entered into on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentation;
(2) this Indenture, the Notes and the Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(5B) any agreement encumbrance or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred as consideration in, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company) and outstanding on such date;
(C) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (A) or (B) of this Section 4.06 or this clause (C) or contained in any amendment to an agreement referred to in clause (A) or (B) of this Section 4.06 or this clause (C); provided, however, that has been the encumbrances and restrictions contained in any such Refinancing agreement or amendment are no less favorable in any material respect to the Holders than the encumbrances and restrictions contained in such predecessor agreements;
(D) any encumbrance or restriction pursuant to an agreement with respect to Indebtedness incurred in reliance on Section 4.07(b)(1);
(E) in the case of clause (4) above, any encumbrance or restriction:
(i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, sublease, license or similar contract, or the assignment or transfer of any such lease, sublease, license or other contract; or
(ii) contained in mortgages, pledges and other security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or the Subsidiary incurring or Guaranteeing such indebtedness;
(F) with respect to a Restricted Subsidiary, any restriction imposed pursuant to an agreement entered into for the sale or other disposition of all or substantially all the Capital Stock or assets of such SubsidiaryRestricted Subsidiary pending the closing of such sale or disposition;
(7G) Secured any encumbrance or restriction existing under or by reason of Indebtedness otherwise permitted or other contractual requirements of a Receivables Entity in connection with a Qualified Receivables Transaction or the Company or any Restricted Subsidiary with respect to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such IndebtednessStandard Securitization Undertakings in connection with a Qualified Receivables Transaction;
(8) H) purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (4) above;
(I) any encumbrances or restrictions contained in joint venture agreements and restrictions with respect to the disposition or distribution of assets or property subject to asset sale agreements, stock sale agreements and other similar agreements and customary provisions in agreements restricting the assignment or transfer thereof;
(J) restrictions on cash or other deposits or net worth imposed by customers or customers, lenders, suppliers under contracts entered into or, in the ordinary course of business, other third parties or by Liens permitted hereby;
(9K) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant with respect to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained inForeign Subsidiary, any amendment, supplement, restatement encumbrance or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions restriction contained in the Initial Agreement or Initial Agreements to which terms of any Indebtedness incurred by such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);Foreign Subsidiary; and
(13L) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into contained in the ordinary course terms of businessany Indebtedness permitted to be incurred hereunder; provided that such agreement prohibits the encumbrance of solely restriction are not expected to (as determined by the property or assets Company in good faith on the date of incurrence) materially adversely affect the ability of the Issuer Company to pay principal and interest on the Notes; and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof that do not contain encumbrances or restrictions that are materially more restrictive (as determined by the Company in good faith) than those in the original Indebtedness. For purposes of determining compliance with this Section 4.06, (i) 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 (ii) the subordination of loans or advances made to the Company or a Restricted Subsidiary to other Indebtedness Incurred by the Company or any such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does shall not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing be deemed a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal loans or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors (other than the Guarantors) 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 (other than the Guarantors) to:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of Guarantor on its Restricted Subsidiaries that are Guarantors, Capital Stock; or with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsGuarantor;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsGuarantor; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsGuarantor; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) contractual encumbrances or restrictions of the Issuer or any of its Restricted Subsidiaries or their respective properties in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, or the Spin-Off Effective Date pursuant to Existing the Spin-Off Documents, including pursuant to the New Credit Agreement and the other documents relating to the New Credit Agreement, related Swap Contracts and Indebtedness and related documentationpermitted pursuant to Section 3.3(b)(iii);
(2ii) this Indenture, the Notes and the GuaranteesGuarantees thereof;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4iii) applicable law or any applicable rule, regulation or orderorder (including court or administrative orders);
(5iv) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged merged, amalgamated or consolidated with or into the Issuer or any Restricted SubsidiarySubsidiary or an Unrestricted Subsidiary that is designated a Restricted Subsidiary which was in existence at the time of such acquisition (or at the time it merges, amalgamates or which agreement consolidates with or instrument is assumed by into the Issuer or any Restricted Subsidiary or is designated a Restricted Subsidiary) or assumed in connection with an the acquisition of assets from such PersonPerson (but, or any other transaction entered into in connection with any such acquisitioneach case, merger or consolidation, not created in contemplation thereof);
(v) customary (as in effect at the time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, determined by the Issuer in good faith, which determination shall be conclusive) encumbrances or a Restricted Subsidiary, as restrictions contained in contracts or agreements for the case may be, when sale of assets applicable to such Person becomes assets pending consummation of such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenturesale, including without limitation, customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(7vi) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9vii) other Indebtedness or Preferred Stock customary (i) of as determined by the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent in good faith, which determination shall be conclusive) provisions in (x) joint venture agreements entered into in the ordinary course of business with respect to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent Equity Interests subject to the Issue Date pursuant joint venture and (y) operating or other similar agreements, asset sale agreements and stock sale agreements entered into in connection with the entering into of such transaction, which limitation is applicable only to Section 4.10the assets that are the subject of those agreements;
(10viii) purchase money obligations for property acquired and Capitalized Lease Obligations entered into in the ordinary course of business, to the extent such obligations impose restrictions of the nature discussed in Section 3.6(c) on the property so acquired;
(ix) customary (as determined by the Issuer in good faith, which determination shall be conclusive) provisions contained in joint venture agreements leases, sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of businessbusiness to the extent such obligations impose restrictions on the property subject to such lease, sub-lease, license, sublicense, contract or other similar agreement;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13x) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Receivables Factoring or Qualified Receivables Financing that, in the good faith determination of the Issuer, are necessary or advisable to effect such Qualified Receivables Factoring or Qualified Receivables Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14xi) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets Preferred Stock of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred that is Incurred subsequent to the Issue Date pursuant to Section 3.3; if (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in agreements in effect on the Issue Date this Indenture (as determined in good faith by the Issuer) , which determination shall be conclusive), or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith faith, which determination shall be conclusive, that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes Notes;
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 3.3 and Section 3.5 to the extent limiting the right of the debtor to dispose of the assets securing such Indebtedness;
(xiii) any encumbrance or restriction arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that, individually or in the aggregate, (x) do not detract from the value of the property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or any Restricted Subsidiary or (y) do not materially impair the Issuer’s ability to make future principal or interest payments on the Notes, in each case under this clause (xiii), as determined by the Issuer in good faith;
(xiv) customary (as determined by the Issuer in good faith, which determination shall be conclusive) provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to the applicable joint venture;
(xv) existing under, by reason of or with respect to Refinancing Indebtedness; provided that the encumbrances and restrictions contained in the agreements governing that Refinancing Indebtedness are, in the good faith judgment of the Issuer, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being Refinanced; and
(xvi) 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 (i) through (xv) of this Section 3.6; provided that such encumbrance encumbrances and restrictions contained in any such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or restriction applies only if refinancing are, in the good faith judgment of the Issuer, not materially more restrictive, taken as a default occurs in respect of a payment or financial covenant relating whole, than the encumbrances and restrictions prior to such Indebtednessamendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 3.6, (i) 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 (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (Sylvamo Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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) to pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries
(a) on its Capital Stock, or (b) with respect to any other interest or participation in, or measured 69 by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are Guarantors;
(2) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are Guarantors; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1a) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to the Pan-U.S. ABL Facility, the Existing Indebtedness Notes and the related documentationdocumentation in effect on the Issue Date and in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2b) this Indenture, the Notes Securities and the Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4c) applicable law or any applicable rule, regulation or order;
(5d) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toits Subsidiaries, or Lien on, any the property or assets of the Issuer Person or any Restricted Subsidiary not otherwise prohibited by this Indentureits Subsidiaries, so acquired;
(e) contracts or agreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(7f) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) g) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10h) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11i) purchase money obligations and Capitalized Lease Obligations for property acquired or leased in the ordinary course of business that impose restrictions on the property so acquired or leased;
(j) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business that impose restrictions on the property subject to such lease;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13k) any encumbrance or restriction of a Securitization Subsidiary effected in connection with (A) a Factoring Facility (provided that such encumbrance or restriction (i) exists on the date hereof or (ii) is in the good faith determination of the Issuer (x) necessary or advisable to effect such Receivables Financing and applies only to the relevant Subsidiaries to which such Receivables Financing is made available or (y) not materially more burdensome than the encumbrances and restrictions under the Factoring Facilities in effect on the date hereof) 70 or (B) a Qualified Securitization Receivables Financing; provided, however, that in the case of this clause (B), such encumbrances or restrictions (i) apply only to any Securitization Subsidiarya Receivables Subsidiary or (ii) are in the good faith determination of the Issuer (x) necessary or advisable to effect such Qualified Receivables Financing and applicable only to the relevant Subsidiaries to which such Receivables Financing is made available or (y) not materially more burdensome than the encumbrances and restrictions under the Factoring Facilities in effect on the date hereof;
(14A) any encumbrance or restriction in connection with Non-Recourse Product Financing other Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which Disqualified Stock of the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property Subsidiaries, or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16B) customary provisions restricting subletting or assignment of any lease governing a leasehold interest Preferred Stock of any Restricted Subsidiary, in each case that is Incurred subsequent to the Issue Date pursuant to Section 4.03; (m) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19n) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (that, as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction , will not materially adversely affect the Issuer’s 's ability to make principal or interest payments on the Notes Securities; or
(o) any encumbrances or restrictions of the type referred to in clauses (ya) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.and
Appears in 1 contract
Sources: Indenture (Constellium Se)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are GuarantorsIssuer, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsIssuer;
(2) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsIssuer; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsIssuer; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Secured OpCo Notes, Unsecured OpCo Notes, the New Secured OpCo Notes, any Hedging Obligations, or any related documents or (y) on the Issue Effective Date, including, without limitation, pursuant to Existing Indebtedness and related documentation;
(2) this Indenture, the Notes Indenture and the GuaranteesNotes;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(5) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Subsidiary;
(7) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a OpCo or an OpCo Notes Guarantor that is incurred subsequent to the Issue Effective Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Effective Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Effective Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Effective Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 1 contract
Sources: Indenture (Warner Music Group Corp.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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 Issuer or Restricted Subsidiary to:
(1a) (i) pay dividends or make any other distributions to the Company or any Restricted Subsidiary (1) on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Company or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:Subsidiary;
(1) (i) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, Date and (ii) contractual encumbrances or restrictions pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Credit Agreement Documents, in each case, any similar contractual encumbrances or restrictions or any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes and or the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Company or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business or consistent with past practice or industry norm;
(11) in the case of Section 4.05(c), any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including without limitations, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant contained in any Permitted Securitization Financing with respect to any agreementSpecial Purpose Securitization Subsidiary;
(13) other Indebtedness, instrument Disqualified Stock or obligation Preferred Stock (a) of the Company or any Restricted Subsidiary that is a “Refinancing Agreement”Subsidiary Guarantor or a Foreign Subsidiary or (b) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument Restricted Subsidiary that is not a Subsidiary Guarantor or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such Refinancing Agreement agreement or Amendment taken as a whole are instrument will not materially less favorable affect the Issuers’ ability to make anticipated principal or interest payments on the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates Notes (as determined in good faith by the IssuerCompany);
, provided that in the case of each of clauses (13a) any encumbrance and (b), such Indebtedness, Disqualified Stock or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only Preferred Stock is permitted to any Securitization Subsidiarybe Incurred subsequent to the Issue Date pursuant to Section 4.03;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(15) any tradingencumbrances or restrictions of the type referred to in Section 4.05(a), netting(b) or (c) above imposed by any amendments, operatingmodifications, constructionrestatements, servicerenewals, supplyincreases, purchasesupplements, sale refundings, replacements or other agreement refinancings of the contracts, instruments or obligations referred to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessclauses (1) through (14) above; provided that such agreement prohibits amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the encumbrance of solely the property or assets good faith judgment of the Issuer Company, not materially more restrictive 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. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to the Company or a Restricted Subsidiary to other Indebtedness Incurred by the Company or any such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does shall not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing be deemed a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal loans or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 1 contract
Sources: Indenture
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will QD LLC shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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 Issuer or Restricted Subsidiary to:
(1a) (i) pay dividends or make any other distributions to QD LLC or any Restricted Subsidiary (1) on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer QD LLC or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer QD LLC or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer QD LLC or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Credit Agreement Documents and the Subordinated Notes due 2013;
(2) this Indenture, the Notes (and the Guaranteesany Exchange Notes and guarantees thereof);
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer QD LLC or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15a) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer QD LLC or any Restricted Subsidiary in any manner material to the Issuer that is a Guarantor or such Restricted Subsidiary;
a Foreign Subsidiary or (20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement Subsidiary that is not a Guarantor or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are will not materially less favorable affect the Issuers’ ability to the Holders than the encumbrances and restrictions contained in agreements in effect make anticipated principal or interest payments on the Issue Date Notes (as determined in good faith by QD LLC), provided that in the Issuercase of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.03;
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(14) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above 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 (13) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of QD LLC, no more restrictive 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. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) if the subordination of loans or advances made to QD LLC or a Restricted Subsidiary to other Indebtedness Incurred by QD LLC or any such encumbrance or Restricted Subsidiary shall not be deemed a restriction is not materially more disadvantageous to on the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal loans or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 1 contract
Sources: Indenture (Quality Distribution Inc)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Holdings shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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 Issuer or Restricted Subsidiary to:
(1a) (i) pay dividends or make any other distributions to Holdings or any Restricted Subsidiary (1) on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to the Existing Indebtedness Senior Notes (including any guarantee thereof), the Second Lien Term Facility (including any guarantee thereof) and related documentationthe Priority Lien Term Facility (including any guarantee thereof) and (B) contractual encumbrances or restrictions pursuant to the Credit Agreement and the other Credit Agreement Documents and, in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes and or the Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Holdings or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business;
(11) in the case of clause (c) above, any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license (including without limitation, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 1 contract
Sources: Indenture (EP Energy Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Partnership shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock Equity Interests to the Issuer Partnership or to any of its the Partnership's Restricted Subsidiaries that are Guarantors, or with respect to any other interest or participation in, or measured by, its profitsSubsidiaries, or pay any Indebtedness owed to the Issuer Partnership or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2ii) make loans or advances to or make other investments in the Issuer Partnership or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3iii) sell, lease or transfer any of its properties or assets to the Issuer Partnership or to any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiaries.
(b) However, Section 4.15(aThe restrictions in the preceding paragraph (a) will shall not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) contractual encumbrances or restrictions agreements as in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue DateDate and any amendments, includingmodifications, without limitationrestatements, pursuant to renewals, increases, supplements, refundings, replacements or refinancings of any such agreements or any Existing Indebtedness to which such agreement relates, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are no more restrictive, taken as a whole, with respect to such distribution, dividend and related documentationother payment restrictions and loan or investment restrictions than those contained in such agreement, as in effect on the date of the Indenture;
(2ii) this the Indenture, the Notes and the Guarantees;
(3iii) purchase money obligations that impose encumbrances or restrictions on a property so acquiredapplicable law;
(4iv) applicable law any instrument governing Indebtedness or Equity Interests of a Person acquired by the Partnership or any applicable rule, regulation or order;
(5) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any its Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, Subsidiaries as in effect at the time of such acquisition, merger, consolidation or transaction acquisition (except to the extent that such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of such Person, so acquired, provided that, in the Issuer or any Restricted Subsidiary not otherwise prohibited case of Indebtedness, such Indebtedness was permitted by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition terms of the Capital Stock or assets of such SubsidiaryIndenture to be incurred;
(7v) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 customary nonassignment provisions in Hydrocarbon purchase and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash sale or other deposits exchange agreements, or net worth imposed by customers or suppliers under contracts similar operational agreements and in licenses and leases entered into in the ordinary course of business;
(9vi) other Indebtedness or Preferred Stock (i) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the Issuer nature described in clause (a)(iii) above;
(vii) any agreement for the sale or any other disposition of assets or Equity Interests in a Restricted Subsidiary of the Partnership that contains any one or more of the restrictions described in clauses (a)(i) through (a)(iii) above by such Restricted Subsidiary pending its sale or other disposition, provided that such sale or disposition is consummated, or such restrictions are canceled or terminated or lapse, within 90 days;
(viii) Permitted Refinancing Indebtedness, provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a Guarantor that is incurred subsequent whole, than those contained in the agreements governing the Indebtedness being refinanced;
(ix) Permitted Liens securing Indebtedness otherwise permitted to the Issue Date be issued pursuant to Section 4.10 or (ii) 5.06 hereof that is incurred by a Foreign Subsidiary limit the right of the Issuer subsequent Partnership or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien; or
(x) any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction relates only to the Issue Date pursuant to Section 4.10;property or assets so acquired and is not and was not created in anticipation of such acquisitions; or
(10xi) customary provisions with respect to the disposition or distribution of assets in joint venture Joint Venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 1 contract
Sources: First Supplemental Indenture (Plains All American Pipeline Lp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Holdings and the Issuers shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions to Holdings or any Restricted Subsidiary (1) on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, and (B) contractual encumbrances or restrictions pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Credit Agreement Documents and, in each case, any similar contractual encumbrances or restrictions or any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes and or the Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) imposed by applicable law or any applicable rule, regulation or order, including without limitation any encumbrance or restriction imposed by any governmental authority or any governmental or regulatory licenses or state, provincial, territorial, municipal or local licenses, franchises or charters;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Holdings or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition other than in connection with the Incurrence of Indebtedness of the type contemplated by clause (iv) of Section 4.03(b), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of businessbusiness or consistent with past practice or industry norm or arising in connection with any Permitted Liens;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of businessbusiness or consistent with past practice or industry norm;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations and other capital or finance lease obligations in the ordinary course of business that impose restrictions of the nature discussed in Section 4.05(c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business or consistent with past practice or industry norm;
(11) in the case of Section 4.05(c) above, any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including without limitation, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant contained in any Permitted Securitization Document with respect to any agreementSpecial Purpose Securitization Subsidiary;
(13) encumbrances and restrictions contained in other Indebtedness, instrument Disqualified Stock or obligation Preferred Stock (a) of Holdings or any Restricted Subsidiary that is an Issuer, a “Refinancing Agreement”Subsidiary Guarantor or a Foreign Subsidiary or (b) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contractRestricted Subsidiary that is not an Issuer, instrument a Subsidiary Guarantor or obligation referred to a Foreign Subsidiary so long as, in 4.15(b)(1the case of this clause (b), either (x) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the such encumbrances and restrictions contained in any such Refinancing Agreement agreement or Amendment taken as a whole are instrument will not materially less favorable adversely affect the Issuers’ ability to make anticipated principal or interest payments on the Holders than encumbrances Notes as and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates when they come due (as determined in good faith by the Issuer);
(13Holdings) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies encumbrances and restrictions apply only if during the continuance of a default occurs in respect of a payment or financial maintenance covenant relating to such Indebtedness; provided that in the case of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.03;
(14) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(15) any encumbrances or restrictions of the type referred to in Section 4.05(a), (b) or (c) above 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 (14) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of Holdings, not materially more restrictive 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. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to Holdings or a Restricted Subsidiary to other Indebtedness Incurred by Holdings or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (Garrett Motion Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Holdings shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) pay dividends or make any other distributions on its Capital Stock to the Issuer Holdings or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) on August 12, 2004, including pursuant to any the Credit Agreement, Agreement and the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentationother Senior Credit Documents;
(2) this the Original Indenture, the Notes Original Notes, the Security Documents and the GuaranteesIntercreditor Agreement;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Holdings or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer or Person, so acquired;
(5) any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all the Capital Stock or assets of such SubsidiaryRestricted Subsidiary pending the closing of such sale or disposition;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired in the ordinary course of business or Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleases, licenses or asset sale agreements leases and other agreementssimilar agreements entered into in the ordinary course of business that impose restrictions of the type described in clause (c) above on the property subject to such lease;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The From and after the Escrow Merger, the Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on which prohibits or limits the ability of any such Restricted Subsidiary to:
(1a) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of Restricted Subsidiary (1) on its Restricted Subsidiaries that are Guarantors, Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are Guarantors;; or
(2b) make loans or advances to the Issuer or any Restricted Subsidiary that is a direct or indirect parent of its such Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (i) contractual encumbrances or restrictions in effect on the Completion Date and (xii) contractual encumbrances or restrictions pursuant to any Credit AgreementAgreement and any other Credit Agreement Documents and, the Existing Unsecured Notesin each case, similar contractual encumbrances effected by any Hedging Obligationsamendments, modifications, restatements, renewals, supplements, refundings, replacements or any related documents refinancings of such agreements or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentationinstruments;
(2) this Indenture, the Notes and Notes, the Guarantees, the Security Documents or the Intercreditor Agreements;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including, without limitation, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any such Securitization Subsidiary;
(1413) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15a) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer that is a Guarantor or such Restricted Subsidiary;
a Foreign Subsidiary or (20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement Subsidiary that is not a Guarantor or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are will not materially less favorable affect the Issuer’s or any Subsidiary Guarantor’s ability to the Holders than the encumbrances and restrictions contained in agreements in effect make anticipated principal or interest payments on the Issue Date Notes (as determined in good faith by the Issuer), provided that in the case of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Completion Date pursuant to Section 4.03;
(14) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(15) any encumbrances or restrictions of the type referred to in Section 4.05(a) or (iib) if above 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 (14) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction is not materially more disadvantageous to refinancings are, in the Holders than is customary in comparable financings (as determined in good faith by judgment of the Issuer) , no more restrictive with respect to such dividend and either 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. For purposes of determining compliance with this Section 4.05, (xi) the Issuer determines priority of any Preferred Stock in good faith that such encumbrance receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction will not materially affect on the Issuer’s ability to make principal distributions on Capital Stock, and (ii) the subordination of loans or interest payments advances made to the Issuer or a Restricted Subsidiary to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the Notes ability to make loans or (y) such encumbrance or restriction applies only if advances. This Section 4.05 shall not apply during a default occurs in respect of a payment or financial covenant relating to such IndebtednessSuspension Period.
Appears in 1 contract
Sources: Indenture (Forward Air Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Dutch Co-Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Dutch Co-Issuer or any of its Restricted Subsidiaries that are Guarantors, on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Dutch Co-Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Dutch Co-Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Dutch Co-Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) contractual encumbrances or restrictions of Dutch Co-Issuer or any of its Restricted Subsidiaries in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to Existing Indebtedness the Senior Credit Agreement and the other documents relating to the Senior Credit Agreement, the Dollar Notes Indenture and the notes, guarantees and other documents relating to the Dollar Notes Indenture and related documentationHedging Obligations;
(2ii) this Indenture, the Notes and the Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4iii) applicable law or any applicable rule, regulation or order;
(5iv) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Dutch Co-Issuer or any Restricted Subsidiary that was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (or at the time it merges with or into Dutch Co-Issuer or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, mergerin each case, consolidation not created in contemplation thereof)), which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes of with a merger under this clause (5iv), if a Person other than the Dutch Co-Issuer or such Restricted Subsidiary is the Successor Company with respect theretoto such merger, any Subsidiary thereof of such Person, or any agreement or instrument of such Person or any Subsidiary of such Subsidiary Person, shall be deemed acquired or assumed, as the case may be, by the Dutch Co-Issuer or a such Restricted Subsidiary, as the case may be, when at the time of such Person becomes such Successor Companymerger;
(6v) any transfer of, agreement customary encumbrances or restrictions contained in contracts or agreements for the sale of assets applicable to transfer, option or right with respect to, or Lien on, any property or such assets pending consummation of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenturesuch sale, including without limitation, customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary;
(7vi) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10vii) customary provisions in joint venture operating or other similar agreements, asset sale agreements and stock sale agreements entered into in connection with the entering into of such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(viii) purchase money obligations for property acquired and Capitalized Lease Obligations entered into in the ordinary course of business to the extent such obligations impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(ix) customary provisions contained in leases, sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of businessbusiness to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13x) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(14xi) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with NonPreferred Stock of Dutch Co-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred that is Incurred subsequent to the Issue Date pursuant to Section 3.3; provided that (i) if the such encumbrances and restrictions contained in any agreement or instrument shall not materially affect the Issuers’ ability to make anticipated principal or interest payments on the Notes (as determined by Dutch Co-Issuer in good faith) or (ii) such encumbrances and restrictions contained in any agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on this Indenture, the Issue Date Dollar Notes Indenture or the Senior Credit Agreement (as determined by Dutch Co-Issuer in good faith by the Issuerfaith);
(xii) or (ii) if such any encumbrance or restriction is not materially more disadvantageous contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 3.3 and 3.5 to the Holders than is customary extent limiting the right of the debtor to dispose of the assets securing such Indebtedness;
(xiii) any encumbrance or restriction arising or agreed to in comparable financings (as determined the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in good faith by the Issuer) and either aggregate, (x) detract from the value of the property or assets of Dutch Co-Issuer determines or any Restricted Subsidiary in good faith that such encumbrance any manner material to Dutch Co-Issuer or restriction will not any Restricted Subsidiary or (y) materially affect the Issuer’s Issuers’ ability to make future principal or interest payments on the Notes Notes, in each case, as determined by Dutch Co-Issuer in good faith;
(xiv) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to the applicable joint venture; and
(yxv) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiv) above; provided that such encumbrance encumbrances and restrictions contained in any such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or restriction applies only if refinancing are, in the good faith judgment of Dutch Co-Issuer, not materially more restrictive as a default occurs in respect of a payment or financial covenant relating whole than the encumbrances and restrictions prior to such Indebtednessamendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 3.6, (i) 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 (ii) the subordination of loans or advances made to Dutch Co-Issuer or a Restricted Subsidiary to other Indebtedness Incurred by Dutch Co-Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, agreement or any related documents or (y) instrument in effect on the Issue Date, including, without limitation, including pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Credit Agreement Documents and any similar contractual encumbrances or restrictions effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes (and any Exchange Notes) or the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business;
(10) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) other Indebtedness, Disqualified Stock or Preferred Stock (a) of any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets Subsidiary of the Issuer that is a Subsidiary Guarantor or such a New Vessel Subsidiary or (b) of any Restricted Subsidiary that are the subject to is not a Subsidiary Guarantor or a New Vessel Subsidiary so long as such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined in good faith by the Issuer), provided that such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.03;
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(14) any encumbrances or restrictions of the type referred to in clauses (a), (b) or (yc) above 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 (13) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if a default occurs refinancings are, in the good faith judgment of the Issuer, no more restrictive with respect of a payment or financial covenant relating to such Indebtednessdividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (Mariner, LLC)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on which prohibits or limits the ability of any such Restricted Subsidiary to:
(1a) pay dividends or make any other distributions to Borrower or any Restricted Subsidiary (1) on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are Guarantors;; or
(2b) make loans or advances to the Issuer Borrower or any Restricted Subsidiary that is a direct or indirect parent of its such Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) (i) contractual encumbrances or restrictions in effect on the Closing Date (including encumbrances or restrictions imposed on Con-way and any Subsidiary thereof which is a Restricted Subsidiary) and (ii) contractual encumbrances or restrictions pursuant to this Agreement, the other Loan Documents, the ABL Credit Agreement (and all guarantee, security and other documents relating thereto), the Con-way BridgeBilateral Credit Agreement and, in each case, similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(ii) (x) pursuant to any Credit Agreementthe 20192023 Notes Indenture, the Existing Unsecured Notes20192023 Notes or the guarantees thereunder and, any Hedging Obligations, or any related documents or (y) on the Issue Date2021/20222024 Notes Indenture, includingthe 20212024 Notes, without limitationthe 2022 or the guarantees thereunder or (z) the 2025 Notes Indenture, pursuant to Existing Indebtedness and related documentationthe 2025 Notes or the guarantees thereunder;
(2) this Indenture, the Notes and the Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4iii) applicable law or any applicable rule, regulation or order;
(5iv) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Borrower or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(v) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(7vi) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 7.1 and 4.12 Section 7.7 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) vii) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10viii) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11ix) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business;
(x) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business;
(12xi) any encumbrances encumbrance or restrictions pursuant to any agreementrestriction that restricts in a customary manner the subletting, instrument assignment or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing transfer of any property or asset that is subject to a lease, license or similar contract, instrument or obligation referred to in 4.15(b)(1) through the assignment or transfer of any such lease, license (11) (an “Initial Agreement”including without limitationslimitation, licenses of intellectual property) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer)contracts;
(13xii) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any such Securitization Subsidiary;
(14xiii) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15a) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer Borrower or any Restricted Subsidiary in any manner material to the Issuer that is a Guarantor or such Restricted Subsidiary;
a Foreign Subsidiary or (20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement Subsidiary that is not a Guarantor or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are will not materially less favorable affect Borrower’s or any Guarantor’s ability to the Holders than the encumbrances and restrictions contained in agreements in effect make anticipated principal or interest payments on the Issue Date Loans (as determined in good faith by Borrower), provided that in the Issuercase of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Closing Date pursuant to Section 7.1;
(xiv) any Restricted Investment not prohibited by Section 7.2 and any Permitted Investment; or
(xv) any encumbrances or restrictions of the type referred to in Section 7.3(a) or (iib) if above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiv) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction is not materially more disadvantageous to refinancings are, in the Holders than is customary in comparable financings (as determined in good faith by judgment of Borrower, no more restrictive with respect to such dividend and other payment restrictions than those contained in the Issuer) and either dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.; or
(xxvi) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such IndebtednessSpin Transactions.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Holdings shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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 the Co-Issuer or any such Restricted Subsidiary to:
(1a) (i) pay dividends or make any other distributions to Holdings or any Restricted Subsidiary (1) on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to the Existing Indebtedness Senior Notes (including any guarantee thereof), the Secured Notes (including any guarantee thereof) and related documentationthe Term Loan Facility (including any guarantee thereof) and (B) contractual encumbrances or restrictions pursuant to the Credit Agreement and the other Credit Agreement Documents and, in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes (and any Exchange Notes) or the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Holdings or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business;
(11) in the case of clause (c) above, any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license (including without limitations, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 1 contract
Sources: Indenture (MBOW Four Star, L.L.C.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions to the Company or any of the Restricted Subsidiaries (1) on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Company or any of its the Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Company or any of its the Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Company or any of its the Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to the Existing Indebtedness First Lien Notes and related documentationthe guarantees thereof and the indentures relating thereto;
(2) this Indenture, the Notes (and any guarantees thereof), the Security Documents and the GuaranteesIntercreditor Agreement;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Company or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toits Subsidiaries, or Lien on, any the property or assets of the Issuer Person or any Restricted Subsidiary not otherwise prohibited by this Indentureits Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such SubsidiaryRestricted Subsidiary pending the closing of such sale or disposition;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations and Capitalized Lease Obligations, in each case for property acquired or leased in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired or leased;
(10) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property subject to such lease;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15i) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer Company or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
Company (21x) an agreement or instrument relating to any Indebtedness incurred that is Incurred subsequent to the Issue Date pursuant to Section 4.03 and (iy) if in the encumbrances and restrictions contained in any such agreement or instrument taken as case of a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction Restricted Subsidiary that is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer a Note Guarantor, an Officer reasonably determines in good faith that any such encumbrance or restriction will not materially adversely affect the IssuerCompany’s ability to make anticipated principal or interest payments on the Notes Notes, or (yii) that is Incurred by a Foreign Subsidiary of the Company subsequent to the Issue Date pursuant to Section 4.03;
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(14) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above 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 (13) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if a default occurs refinancings are, in the good faith judgment of the Company, no more restrictive with respect of a payment or financial covenant relating to such Indebtednessdividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to the Company or a Restricted Subsidiary to other Indebtedness Incurred by the Company or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors 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 the Issuer Company or any of its Restricted Subsidiaries that are Guarantors, (i) on its Capital Stock or (ii) with respect to any other interest or participation in, or measured by, its profits, ; or (B) pay any Indebtedness owed to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2) make loans or advances to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Issuer Company or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiaries.
(b) However, The restrictions in Section 4.15(a) 4.08 hereof will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to Existing Indebtedness the Credit Agreement, the other Senior Credit Documents, the 2006 Indenture and related documentationthe Term Loan Agreement;
(2) this Indenture, Indenture and the Notes (and the Guaranteesany Exchange Notes and Guarantees thereof);
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Company or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer Person, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.09 and Section 4.12 hereof that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements (including customary provisions in agreements relating to any Joint Venture);
(9) other Indebtedness or Preferred Stock purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (i3) of Section 4.08(a) hereof on the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10property so acquired;
(10) customary provisions contained in joint venture agreements leases, licenses, contracts and other similar agreements entered into in the ordinary course of businessbusiness that impose restrictions of the type described in clause (3) of Section 4.08(a) hereof on the property subject to such lease;
(11) customary provisions contained in leases, subleases, licenses other Indebtedness or asset sale agreements Disqualified Stock of the Company or any Restricted Subsidiary of the Company or Preferred Stock of any Restricted Subsidiary of the Company that is Incurred subsequent to the Issue Date and other agreements;
(12) any encumbrances or restrictions permitted pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”)Section 4.09 hereof; provided that the such encumbrances and restrictions contained in any such Refinancing Agreement agreement or Amendment taken as a whole are instrument will not materially less favorable affect the Company’s ability to make anticipated principal or interest payments on the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates Notes (as determined in good faith by senior management or the IssuerBoard of Directors of the Company);
(12) restrictions pursuant to the Equipment Financing Agreements; and
(13) any encumbrance encumbrances or restriction restrictions of a Securitization Subsidiary effected the type referred to in connection with a Qualified Securitization Financing; providedclauses (1), however(2) and (3) of Section 4.08(a) hereof imposed by any amendments, that such restrictions apply only modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to any Securitization Subsidiary;
in clauses (141) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
through (1512) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessabove; provided that such agreement prohibits amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the encumbrance good faith judgment of solely senior management or the property or assets Board of Directors of the Issuer Company, no more restrictive as a whole with respect to such encumbrances and restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(c) 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 liquidating distributions being paid on common Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock; and (2) the subordination of loans or advances made to the Company or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company or any such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does shall not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing be deemed a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal loans or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 1 contract
Sources: Indenture (HNS Finance Corp.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, Date and (B) contractual encumbrances or restrictions pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Credit Agreement Documents and, in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes (and any Exchange Notes) or the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement similar agreements entered into in the ordinary course of business;
(1811) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
the case of clause (19c) above, any encumbrance or restriction that arises restricts in a customary manner the subletting, assignment or is agreed to in the ordinary course transfer of business and does not detract from the value of any property or assets asset that is subject to a lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license (including without limitations, licenses of intellectual property) or other contracts;
(12) any customary encumbrances or restrictions imposed on any Project Finance Subsidiary pursuant to the agreements governing any Project Finance Indebtedness;
(13) other Indebtedness, Disqualified Stock or Preferred Stock (a) of the Issuer or any Restricted Subsidiary in any manner material to the Issuer that is a Subsidiary Guarantor or such Restricted Subsidiary;
a Foreign Subsidiary or (20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement Subsidiary that is not a Subsidiary Guarantor or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined in good faith by the Issuer), provided that in the case of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.03;
(14) an Investment otherwise permitted by this Indenture;
(15) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”; or
(16) any encumbrances or restrictions of the type referred to in clauses (a), (b) or (yc) above 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 (15) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if a default occurs refinancings are, in the good faith judgment of the Issuer, no more restrictive with respect of a payment or financial covenant relating to such Indebtednessdividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (Talos Energy Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions to the Company or any Restricted Subsidiary (1) on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Company or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:Subsidiary;
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, Date (including, without limitation, pursuant to Existing Indebtedness the Credit Agreement and related documentationthe First-Priority Notes Indenture), (B) contractual encumbrances or restrictions pursuant to the Credit Agreement and the other Credit Agreement Documents and (iii) contractual encumbrances or restrictions pursuant to the First-Priority Notes Indenture and the other First-Priority Notes Documents, and, in each case, any similar contractual encumbrances or restrictions or any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes and the GuaranteesDocuments;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Company or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition other than in connection with the Incurrence of Indebtedness of the type contemplated by clause (iv) of Section 4.03(b), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by suppliers, customers or suppliers landlords under contracts entered into in the ordinary course of businessbusiness or consistent with past practice or industry norm or arising in connection with any Permitted Liens;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of businessbusiness or consistent with past practice or industry norm;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations and other capital or finance lease obligations in the ordinary course of business that impose restrictions of the nature discussed in Section 4.05(c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business or consistent with past practice or industry norm;
(11) in the case of Section 4.05(c) above, any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including without limitation, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant contained in any Permitted Securitization Document with respect to any agreementSpecial Purpose Securitization Subsidiary;
(13) other Indebtedness, instrument Disqualified Stock or obligation Preferred Stock (A) of the Company or any Restricted Subsidiary that is the Issuer, a “Refinancing Agreement”Subsidiary Guarantor or a Foreign Subsidiary or (B) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contractRestricted Subsidiary that is not the Issuer, instrument a Subsidiary Guarantor or obligation referred to a Foreign Subsidiary so long as, in 4.15(b)(1the case of this clause (B), either (x) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the such encumbrances and restrictions contained in any such Refinancing Agreement agreement or Amendment taken as a whole are instrument will not materially less favorable adversely affect the Issuer’s ability to make anticipated principal or interest payments on the Holders than encumbrances Notes as and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates when they come due (as determined in good faith by the Issuer);
(13Company) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies encumbrances and restrictions apply only if during the continuance of a default occurs in respect of a payment or financial maintenance covenant relating to such Indebtedness; provided that, in the case of each of clauses (A) and (B), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date by Section 4.03;
(14) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(15) any encumbrances or restrictions of the type referred to in Section 4.05(a), (b) or (c) above 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 (14) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive 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. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to the Company or a Restricted Subsidiary to other Indebtedness Incurred by the Company or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The the Issuer will shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of Restricted Subsidiary (1) on its Restricted Subsidiaries that are Guarantors, Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect on the Completion Date, and (xB) contractual encumbrances or restrictions pursuant to any the Credit AgreementAgreement and the other Credit Agreement Documents and, the Existing Unsecured Notesin each case, any Hedging Obligations, similar contractual encumbrances or restrictions or any related documents amendments, modifications, restatements, renewals, supplements, refundings, replacements or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentationrefinancings of such agreements or instruments;
(2) this Indenture, the Unsecured Notes Indenture, the Notes and the GuaranteesUnsecured Notes;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by suppliers, customers or suppliers landlords under contracts entered into in the ordinary course of businessbusiness or consistent with past practice or industry norm or arising in connection with any Permitted Liens;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of businessbusiness or consistent with past practice or industry norm;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in Section 4.05(c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business or consistent with past practice or industry norm;
(11) in the case of Section 4.05(c) above, any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including without limitation, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant contained in any Permitted Securitization Document with respect to any agreementSpecial Purpose Securitization Subsidiary;
(13) other Indebtedness, instrument Disqualified Stock or obligation Preferred Stock (a) of the Issuer or any Restricted Subsidiary that is a “Refinancing Agreement”Guarantor or a Foreign Subsidiary or (b) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument Restricted Subsidiary that is not a Guarantor or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such Refinancing Agreement agreement or Amendment taken as a whole are instrument will not materially less favorable adversely affect the Issuer’s ability to make anticipated principal or interest payments on the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates Notes (as determined in good faith by the Issuer);
; provided that in the case of each of clauses (13a) any encumbrance and (b), such Indebtedness, Disqualified Stock or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only Preferred Stock is permitted to any Securitization Subsidiarybe Incurred subsequent to the Issue Date pursuant to Section 4.03;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(15) any tradingencumbrances or restrictions of the type referred to in Section 4.06(a), netting(b) or (c) above imposed by any amendments, operatingmodifications, constructionrestatements, servicerenewals, supplyincreases, purchasesupplements, sale refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (14) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, not materially more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend or other agreement payment restrictions prior to which such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary to other Indebtedness Incurred by the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does shall not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing be deemed a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal loans or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 1 contract
Sources: Indenture (Chart Industries Inc)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Holdings shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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 the Co-Issuer or any such Restricted Subsidiary to:
(1a) (i) pay dividends or make any other distributions to Holdings or any Restricted Subsidiary (1) on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to Existing Indebtedness the Secured Notes (including any guarantee thereof) and related documentationthe Term Loan Facility (including any guarantee thereof) and (B) contractual encumbrances or restrictions pursuant to the Credit Agreement and the other Credit Agreement Documents and, in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes (and any Exchange Notes) or the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Holdings or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business;
(11) in the case of clause (c) above, any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license (including without limitations, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 1 contract
Sources: Indenture (MBOW Four Star, L.L.C.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1a) pay dividends or make any other distributions on its Capital Stock to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) However, Section 4.15(a) will the preceding restrictions shall not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) in effect on the Issue Datedate of this Indenture, including, without limitation, pursuant to the Senior Notes Indenture, this Indenture, Existing Indebtedness or the Credit Agreements and related documentationdocumentation or (y) entered into thereafter so long as not materially more restrictive than those described in the preceding clause (x);
(2) this Indenture, the Notes and the Guarantees;
(3) purchase money obligations for property acquired in the ordinary course of business that impose encumbrances or restrictions of the nature discussed in clause (c) above on a the property so acquired;
(43) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Company or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this IndenturePerson, including so acquired;
(5) contracts for the sale of assets, including, without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(76) Secured secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 4.03 and 4.12 4.11 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) 8) other Indebtedness or Preferred Stock of Restricted Subsidiaries (i) that are Guarantors which Indebtedness is permitted to be incurred pursuant to an agreement entered into subsequent to the date of the Issuer this Indenture in accordance with Section 4.03 or any Restricted Subsidiary (ii) that is a Guarantor that are Foreign Subsidiaries which Indebtedness is incurred subsequent to the Issue Date date of this Indenture pursuant to Section 4.10 clause (3), (10) or (ii18) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.104.03(b);
(109) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(1110) customary provisions contained in leases, subleases, leases or licenses or asset sale agreements of intellectual property and other agreementssimilar agreements entered into in the ordinary course of business;
(11) customary provisions restricting subletting or assignment of any lease governing a leasehold interest;
(12) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(13) any encumbrances or restrictions pursuant of the type referred to in clauses (a), (b) and (c) above imposed by any agreementamendments, instrument modifications, restatements, renewals, increases, supplements, refundings, replacements or obligation refinancings of the contracts, instruments or obligations referred to in clauses (a “Refinancing Agreement”1) effecting an extensionand (4) above, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company's Board of Directors, no more restrictive 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 of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer)refinancing;
(1314) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any such Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;; or
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained that are no more restrictive, in any such agreement or instrument taken as a whole are not materially less favorable to the Holders aggregate, than the encumbrances and restrictions contained in agreements those in effect on of the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect date of a payment or financial covenant relating to such Indebtednessthis Indenture.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, profits or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital StockSubsidiaries, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentation;
(2) this Indenture, the Notes and Guarantees, the GuaranteesSecurities, the Security Documents or the Intercreditor Agreements;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary that was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or guarantees utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer Person, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition Disposition of the Capital Stock or assets of such SubsidiaryRestricted Subsidiary pending the closing of such Disposition;
(76) documents relating to any Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits 4.11, which restrictions are restrictions on the right transfer of the debtor to dispose of the assets securing such Secured Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements, collaboration agreements, intellectual property licenses, manufacturing agreements, supply agreements, distribution agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business;
(10) customary provisions contained in contracts, leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business (including non-assignment provisions);
(1211) other Indebtedness, Disqualified Stock or Preferred Stock (a) of the Issuer or any encumbrances Restricted Subsidiary of the Issuer that is a Guarantor or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”b) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or Restricted Subsidiary that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the not a Guarantor so long as such encumbrances and restrictions contained in any such Refinancing Agreement agreement or Amendment taken as a whole are instrument will not materially less favorable affect the Issuer’s ability to make anticipated principal or interest payments on the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates Securities (as determined in good faith by the Issuer), provided that in the case of each of clauses (a) and (b) above, such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date under Section 4.03;
(12) any Permitted Investment (to the extent such encumbrance or restriction was not made in contemplation of such Permitted Investment and was in existence on the date of such Permitted Investment);
(13) any encumbrance customary provisions in partnership agreements, limited liability company agreements, joint venture agreements, or restriction other similar organizational documents that restrict the transfer of a Securitization Subsidiary effected ownership interests in connection with a Qualified Securitization Financingsuch partnership, limited liability company, joint venture or similar Person; provided, however, that such restrictions apply only to any Securitization Subsidiary;or
(14) any encumbrance encumbrances or restriction restrictions of the type referred to in connection clauses (a), (b) and (c) above 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 (13) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, no more restrictive with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale respect to such dividend and other payment restrictions than those contained in the dividend or other agreement payment restrictions prior to which such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness Incurred by the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does shall not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing be deemed a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal loans or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of Restricted Subsidiary (1) on its Restricted Subsidiaries that are Guarantors, Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, Date and (ii) contractual encumbrances or restrictions pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Credit Agreement Documents and, in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes (and any Exchange Notes) or the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business;
(11) in the case of Section 4.05(c) above, any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including without limitations, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any such Securitization Subsidiary;
(1413) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15a) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer that is a Subsidiary Guarantor or such Restricted Subsidiary;
a Foreign Subsidiary or (20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement Subsidiary that is not a Subsidiary Guarantor or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined in good faith by the Issuer), provided that in the case of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.03;
(14) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(15) any encumbrances or restrictions of the type referred to in Section 4.05(a), (b) or (yc) above 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 (14) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if a default occurs refinancings are, in the good faith judgment of the Issuer, no more restrictive with respect of a payment or financial covenant relating to such Indebtednessdividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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 the Issuer or any of its the Restricted Subsidiaries that are Guarantors, (i) on its Capital Stock or (ii) with respect to any other interest or participation in, or measured by, its profits, ; or (B) pay any Indebtedness owed to the Issuer or any of its the Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2) make loans or advances to the Issuer or any of its the Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of its the Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiaries.
(b) However, Section 4.15(a4.08(a) will shall not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including any encumbrance or restriction pursuant to (a) the Credit Agreement and the other Credit Agreement Documents, (b) the Existing Indebtedness Senior Unsecured Notes Indentures, the Existing Senior Unsecured Notes and related documentationthe guarantees thereof, (c) the Existing Exchangeable Senior Notes Indenture, the Existing Exchangeable Senior Notes and the guarantees thereof and (d) the Existing Second Lien Notes Indenture, the Existing Second Lien Notes and the guarantees thereof, the Intercreditor Agreements as well as any other collateral documents relating thereto;
(2) this Indenture, the Notes Notes, the Intermediate Holdings Guarantee, the Note Guarantees, the Collateral Documents and the GuaranteesIntercreditor Agreements;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toits Subsidiaries, or Lien on, any the property or assets of the Issuer Person or any Restricted Subsidiary not otherwise prohibited by this Indentureits Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including without limitation, customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such SubsidiaryRestricted Subsidiary pending the closing of such sale or disposition;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.09 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits (including escrowed funds) or net worth imposed by customers or suppliers and franchisees under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements relating solely to such joint venture entered into in the ordinary course of business;
(9) other Indebtedness purchase money obligations and Financed Lease Obligations, in each case for property acquired or Preferred Stock leased in the ordinary course of business that impose restrictions of the nature discussed in clause (i3) of Section 4.08(a) on the Issuer property so acquired or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10leased;
(10) customary provisions contained in joint venture agreements leases, licenses and other similar agreements entered into in the ordinary course of businessbusiness that impose restrictions of the type described in clause (3) of Section 4.08(a) on the property subject to such lease;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of on a Special Purpose Securitization Subsidiary effected that, in the good faith judgment of senior management or the Board of Directors of the Issuer, is reasonably required in connection with a Qualified Securitization Financingtherewith; provided, however, that such restrictions apply only to any Special Purpose Securitization SubsidiarySubsidiaries;
(1412) any encumbrance or restriction in connection with Non-Recourse Product Financing other Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which Disqualified Stock of the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course or Preferred Stock of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted any Non-Guarantor Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred Incurred subsequent to the Issue Date (i) if the and permitted pursuant to Section 4.09; provided that such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined in good faith by senior management or the Board of Directors of the Issuer); or
(y13) any encumbrances or restrictions of the type referred to in clauses (1), (2) and (3) of Section 4.08(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 (12) of this Section 4..08(b); provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if a default occurs refinancings are, in the good faith judgment of senior management or the Board of Directors of the Issuer, no more restrictive with respect of a payment or financial covenant relating to such Indebtednessencumbrances and other restrictions taken as a whole than those contained in the encumbrances or other restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(c) 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 liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (2) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) entered into on the Issue DateDate or entered into in connection with the refinancing of the existing Indebtedness of the Issuer, including, without limitation, including pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Senior Credit Documents, documents and agreements relating to the Specified Intercompany Agreements, the Parent Notes, the ▇▇▇▇▇▇▇ Notes, the Intelsat ▇▇▇▇▇▇▇ Secured Notes, and the Intelsat Luxembourg Intercompany Loan;
(2) this Indenture, Indenture and the Notes (and the Guaranteesguarantees thereof);
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer Person, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary any restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements (including customary provisions in agreements relating to any Joint Venture);
(9) other Indebtedness or Preferred Stock (i) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to nature discussed in clause (c) above on the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10property so acquired;
(10) customary provisions contained in joint venture agreements leases, subleases, assignments, licenses (including without limitation, licenses of intellectual property), , contracts and other similar agreements entered into in the ordinary course of businessbusiness that impose restrictions of the type described in clause (c) above on the property subject to such lease;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization FinancingReceivables Financing that, in the good faith judgment of the Issuer, are necessary or advisable in connection therewith; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) agreements and instruments, including agreements and instruments governing Indebtedness, Disqualified Stock or Preferred Stock of any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets Subsidiary of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred Incurred subsequent to the Issue Date and permitted pursuant to Section 4.03; provided that either (iA) if the provisions relating to such encumbrance or restriction contained in such agreements or instruments are no less favorable to the Issuer, taken as a whole, as determined by the Board of Directors of the Issuer in good faith, than the provisions contained in the Credit Agreement and the other Senior Credit Documents, the Intelsat Luxembourg Intercompany Loan or in an indenture governing the Parent Notes, the ▇▇▇▇▇▇▇ Notes, the Intelsat ▇▇▇▇▇▇▇ Secured Notes, or the Notes, in each case, as in effect or entered into on the Issue Date or entered into in connection with the refinancing of existing Indebtedness of the Issuer or (B) such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined by the Issuer in good faith);
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; and
(14) any encumbrances or restrictions of the type referred to in clauses (ya), (b) and (c) of this Section 4.05 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 (13) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if refinancings are, in the good faith judgment of the Issuer, no more restrictive as a default occurs in whole with respect of a payment or financial covenant relating to such Indebtednessencumbrances and restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on ordinary shares shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (Intelsat S.A.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) entered into on the Issue DateDate or entered into in connection with the refinancing of the existing Indebtedness of the Issuer, including, without limitation, including pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Senior Credit Documents, documents and agreements relating to the Specified Intercompany Agreements, the Parent Notes, the ▇▇▇▇▇▇▇ Notes, and the Intelsat ▇▇▇▇▇▇▇ Secured Notes;
(2) this Indenture, Indenture and the Notes (and the Guaranteesguarantees thereof);
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer Person, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary any restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements (including customary provisions in agreements relating to any Joint Venture);
(9) other Indebtedness or Preferred Stock (i) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to nature discussed in clause (c) above on the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10property so acquired;
(10) customary provisions contained in joint venture agreements leases, subleases, assignments, licenses (including without limitation, licenses of intellectual property), , contracts and other similar agreements entered into in the ordinary course of businessbusiness that impose restrictions of the type described in clause (c) above on the property subject to such lease;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization FinancingReceivables Financing that, in the good faith judgment of the Issuer, are necessary or advisable in connection therewith; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) agreements and instruments, including agreements and instruments governing Indebtedness, Disqualified Stock or Preferred Stock of any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets Subsidiary of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred Incurred subsequent to the Issue Date and permitted pursuant to Section 4.03; provided that either (iA) if the provisions relating to such encumbrance or restriction contained in such agreements or instruments are no less favorable to the Issuer, taken as a whole, as determined by the Board of Directors of the Issuer in good faith, than the provisions contained in the Credit Agreement and the other Senior Credit Documents, or in an indenture governing the Parent Notes, the ▇▇▇▇▇▇▇ Notes, the Intelsat ▇▇▇▇▇▇▇ Secured Notes, or the Notes, in each case, as in effect or entered into on the Issue Date or entered into in connection with the refinancing of existing Indebtedness of the Issuer or (B) such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined by the Issuer in good faith);
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; and
(14) any encumbrances or restrictions of the type referred to in clauses (ya), (b) and (c) of this Section 4.05 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 (13) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if refinancings are, in the good faith judgment of the Issuer, no more restrictive as a default occurs in whole with respect of a payment or financial covenant relating to such Indebtednessencumbrances and restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on ordinary shares shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (Intelsat S.A.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Holdings shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Holdings or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to the Credit Agreement, the other Senior Credit Documents, the Existing Indebtedness Debentures, the Existing Junior Priority Notes and related documentationthe guarantees thereof;
(2) this Indenture, the Notes (and any Exchange Notes and guarantees thereof), the Security Documents, the First Lien Intercreditor Agreement and the GuaranteesExisting Junior Priority Intercreditor Agreements;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Holdings or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toits Subsidiaries, or Lien on, any the property or assets of the Issuer Person or any Restricted Subsidiary not otherwise prohibited by this Indentureits Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such SubsidiaryRestricted Subsidiary pending the closing of such sale or disposition;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations or Capitalized Lease Obligations, in each case for property so acquired or leased in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleases, licenses or asset sale agreements leases and other agreementssimilar agreements entered into in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property subject to such lease;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer Borrower will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors (other than Excluded Subsidiaries) to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary Subsidiaries (other than Excluded Subsidiaries) to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Issuer Borrower or any of its Restricted Subsidiaries that are Guarantors(other than Excluded Subsidiaries), or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Issuer Borrower or any of its Restricted Subsidiaries that are Guarantors(other than Excluded Subsidiaries);
(2ii) make loans or advances to the Issuer Borrower or any of its Restricted Subsidiaries that are Guarantors(other than Excluded Subsidiaries); or
(3iii) sell, lease or transfer any of its properties or assets to the Issuer Borrower or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionthan Excluded Subsidiaries).
(b) However, the restrictions in Section 4.15(a10.05(a) above will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreementthis Agreement and other agreements governing Existing Indebtedness, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Closing Date, including, without limitation, pursuant to Existing Indebtedness and related documentation;
(2ii) the documents governing the issuance of debt securities after the Closing Date in compliance with this Indenture, Agreement so long as the Notes and the Guaranteesrelevant restrictions as described in clauses (a)(i) through (a)(iii) of this Section 10.05 are not materially more restrictive than those in this Agreement;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4iii) applicable law or any applicable law, rule, regulation or order;
(5iv) customary non-assignment provisions in contracts, agreements, leases, permits and licenses;
(v) purchase money obligations for property acquired and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (iii) of Section 10.05(a);
(vi) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock stock or assets of such Subsidiarya Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the sale or other disposition;
(7vii) Secured Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness otherwise are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(viii) Liens permitted to be incurred pursuant to Sections 4.10 under Section 10.01 and 4.12 associated agreements that limits limit the right of the debtor to dispose of the assets securing subject to such IndebtednessLiens;
(8) ix) provisions limiting the disposition or distribution of assets or property in joint venture, partnership, membership, stockholder and limited liability company agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements, including owners’, participation or similar agreements governing projects owned through an undivided interest, which limitation is applicable only to the assets that are the subject of such agreements;
(x) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of businessconnection with a Permitted Business;
(9xi) other Indebtedness restrictions or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions conditions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other similar agreement to which the Issuer Borrower or any Restricted Subsidiary of its Restricted Subsidiaries the Borrower is a party entered into in the ordinary course of businessconnection with a Permitted Business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer Borrower or such Restricted Subsidiary that are the subject to such of that agreement, the payment rights arising thereunder or and/or the proceeds thereof and does not extend to any other asset or property of the Issuer Borrower or such Restricted Subsidiary or the assets or property of another any other Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18xii) any encumbrances instrument governing Indebtedness or restrictions arising Capital Stock of a Person acquired by the Borrower 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 cash or other deposits permitted under Section 4.12;
(19) any in contemplation of, or to finance, such acquisition), which encumbrance or restriction that arises is not applicable to any Person, or is agreed to in the ordinary course properties or assets of business and does not detract from any Person, other than the value of Person, or the property or assets of the Issuer or any Restricted Subsidiary Person, so acquired; provided that, in any manner material the case of Indebtedness, such Indebtedness was permitted by the terms of this Agreement to the Issuer or such Restricted Subsidiarybe incurred;
(20xiii) customary provisions restricting dispositions Indebtedness of real property interests set forth in any reciprocal easement agreements a Restricted Subsidiary of the Issuer Borrower existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower;
(xiv) with respect to clause (iii) of Section 10.05(a) only, restrictions encumbering property at the time such property was acquired by the Borrower or any of its Restricted Subsidiary; orSubsidiaries, so long as such restriction relates solely to the property so acquired and was not created in connection with or in anticipation of such acquisition;
(21xv) an agreement provisions limiting the disposition or instrument relating to any Indebtedness incurred subsequent distribution of assets or property in agreements governing Non-Recourse Debt, which limitation is applicable only to the Issue Date assets that are the subject of such agreements;
(ixvi) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either other Indebtedness; provided that (x) the Issuer determines restrictions contained in the agreements governing such Indebtedness are not materially more restrictive, taken as a whole, in the good faith judgment of an authorized officer of the Borrower than those contained in the agreements referenced in clauses (i) and (ii) of this Section 10.05(b) and/or (y) in the case of Indebtedness or other obligations incurred pursuant to clause (xv) of Section 10.04(b), the respective restrictions, to the extent more restrictive than those described in preceding clause (x), apply only to the respective assets and/or Persons so acquired;
(xvii) any encumbrance or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 10.05(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refunding’s, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvi) of this Section 10.05(b); provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refunding’s, replacements or restriction will refinancings are, in the good faith judgment of a senior financial officer of the Borrower, not materially affect more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Issuer’s ability dividend or other payment restrictions prior to make principal such amendment, modification, restatement, renewals, increase, supplement, refunding, replacement or interest payments on refinancing; and
(xviii) restrictions imposed by (x) the RJS Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessthe Secured Trading Facility.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Borrower or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) on the Closing Date, including pursuant to any the Credit AgreementAgreements and the other Senior Credit Documents, the Specified Intercompany Agreements, the Existing Unsecured Intelsat Notes, the New Intelsat Bermuda Indebtedness, the Existing PanAmSat Notes and the New PanAmSat Indebtedness (including any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentationexchange notes therefor);
(2) the Backstop Credit Facilities, this Indenture, the Notes Agreement and the GuaranteesLoans (and, in each case, any guarantees thereof);
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Borrower or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer Person, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 10.1 and 4.12 10.8 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements (including customary provisions in agreements relating to any Joint Venture);
(9) other Indebtedness or Preferred Stock (i) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to nature discussed in clause (c) above on the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10property so acquired;
(10) customary provisions contained in joint venture agreements leases, licenses, contracts and other similar agreements entered into in the ordinary course of businessbusiness that impose restrictions of the type described in clause (c) above on the property subject to such lease;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization FinancingReceivables Financing that, in the good faith judgment of the Borrower, are necessary or advisable in connection therewith; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) agreements and instruments, including agreements and instruments governing Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Borrower that is Incurred subsequent to the Closing Date and permitted pursuant to Section 10.1; provided that either (A) the provisions relating to such encumbrance or restriction contained in connection with Non-Recourse Product Financing such agreements or instruments are no less favorable to the Borrower, taken as a whole, as determined by the Board of Directors of the Borrower in good faith, than the provisions contained in any Credit Agreement and the other Senior Credit Documents or in an indenture or agreement governing the Existing Intelsat Notes, the New Intelsat Bermuda Indebtedness, the New PanAmSat Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any tradingthe Existing PanAmSat Notes, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into each case as in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to effect on the Issue Date or (i) if the B)such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the IssuerBorrower’s ability to make anticipated principal or interest payments on the Notes Loans (as determined by the Borrower in good faith);
(13) any Restricted Investment not prohibited by Section 10.2 and any Permitted Investment; or
(14) any encumbrances or restrictions of the type referred to in clauses (ya), (b) and (c) above 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 (13) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if refinancings are, in the good faith judgment of the Borrower, no more restrictive as a default occurs in whole with respect of a payment or financial covenant relating to such Indebtednessencumbrances and restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this covenant, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on ordinary shares shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Borrower or a Restricted Subsidiary of the Borrower to other Indebtedness Incurred by the Borrower or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiaries.
(b) However, the preceding restrictions in Section 4.15(a) will shall not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any the Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, Agreement or any related documents as in effect on the Issue Date or (y) on the Issue Date, including, without limitation, including pursuant to Existing Indebtedness and related documentation;
(2) this Indenture, the Notes and the Guarantees (including any Exchange Notes with respect to the Notes and related Guarantees);
(3) purchase money obligations or other obligations described in Section 4.10(b)(4) (but not subject to the dollar limit in such clause (4)) for property acquired in the ordinary course of business that in each case impose encumbrances or restrictions of the nature discussed in Section 4.15(a)(3) on a the property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(5) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in connection therewith or in contemplation thereof or to provide all or a portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is Person, or the Successor Company with respect theretoproperty or assets of the Person, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companyso acquired;
(6) any transfer ofcontracts for the sale of assets, agreement to transferincluding, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(7) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or Issuer, any Restricted Subsidiary that is a Guarantor or any Foreign Subsidiary, in each case that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.104.10(b);
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any such Securitization Subsidiary;; and
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(1813) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed of the type referred to in the ordinary course clauses (1), (2) and (3) of business and does not detract from the value of property Section 4.15(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or assets refinancings of the Issuer contracts, instruments or any Restricted Subsidiary obligations referred to in any manner material to clauses (1) through (12) of this Section 4.15(b); provided, however, that the Issuer encumbrances or restrictions imposed by such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in any reciprocal easement agreements the good faith judgment of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are Issuer’s Board of Directors, not materially less favorable to the Holders holders of the Notes than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednesspredecessor agreements.
Appears in 1 contract
Sources: Indenture (PQ Systems INC)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will EPE Holdings shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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 the Co-Issuer or any such Restricted Subsidiary to:
(1a) (i) pay dividends or make any other distributions to EPE Holdings or any Restricted Subsidiary (1) on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer EPE Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer EPE Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer EPE Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to Existing Indebtedness the Opco Notes (including any guarantee thereof) and related documentationthe Opco Term Loan Facility (including any guarantee thereof) and (B) contractual encumbrances or restrictions pursuant to the Credit Agreement and the other Credit Agreement Documents and, in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes and or the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer EPE Holdings or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business;
(11) in the case of clause (c) above, any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license (including without limitations, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 1 contract
Sources: Indenture (EP Energy Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, Date and (B) contractual encumbrances or restrictions pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Credit Agreement Documents and, in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes, the 2031 Notes and (including any guarantee thereof) or the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and 4.12 Section 4.11 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in Section 4.05(c) on the property so acquired;
(10) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement similar agreements entered into in the ordinary course of business;
(1811) any encumbrances or restrictions arising in connection with cash or other deposits permitted under the case of Section 4.12;
(19) 4.05(c), any encumbrance or restriction that arises restricts in a customary manner the subletting, assignment or is agreed to in the ordinary course transfer of business and does not detract from the value of any property or assets asset that is subject to a lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license (including without limitations, licenses of intellectual property) or other contracts;
(12) any customary encumbrances or restrictions imposed on any Project Finance Subsidiary pursuant to the agreements governing any Project Finance Indebtedness;
(13) other Indebtedness, Disqualified Stock or Preferred Stock (a) of the Issuer or any Restricted Subsidiary in any manner material to the Issuer that is a Subsidiary Guarantor or such Restricted Subsidiary;
a Foreign Subsidiary or (20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement Subsidiary that is not a Subsidiary Guarantor or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined in good faith by the Issuer), provided that in the case of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.03;
(14) an Investment otherwise permitted by this Indenture;
(15) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”; or
(16) any encumbrances or restrictions of the type referred to in clauses (a), (b) or (yc) above 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 (15) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if a default occurs refinancings are, in the good faith judgment of the Issuer, no more restrictive with respect of a payment or financial covenant relating to such Indebtednessdividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (Talos Energy Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on which prohibits or limits the ability of any such Restricted Subsidiary to:
(1a) pay dividends or make any other distributions to Borrower or any Restricted Subsidiary (1) on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are Guarantors;; or
(2b) make loans or advances to the Issuer Borrower or any Restricted Subsidiary that is a direct or indirect parent of its such Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) (i) contractual encumbrances or restrictions in effect on the Closing Date (x) including encumbrances or restrictions imposed on Con-way and any Subsidiary thereof which is a Restricted Subsidiary, including pursuant to any Credit the Con-way Existing Indebtedness) and (ii) contractual encumbrances or restrictions pursuant to this Agreement, the Existing Unsecured Notesother Loan Documents, the Term Loan Credit Agreement (and all guarantee, security and other documents relating thereto), the Bilateral Credit Agreement and, in each case, similar contractual encumbrances effected by any Hedging Obligationsamendments, modifications, restatements, renewals, supplements, refundings, replacements or any related documents refinancings of such agreements or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentationinstruments;
(2ii) this Indenture, the Senior Notes and Documents or the Guaranteesguarantees thereunder;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4iii) applicable law or any applicable rule, regulation or order;
(5iv) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Borrower or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(v) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(7vi) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 7.1 and 4.12 Section 7.7 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) vii) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10viii) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11ix) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business;
(x) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business;
(12xi) any encumbrances encumbrance or restrictions pursuant to any agreementrestriction that restricts in a customary manner the subletting, instrument assignment or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing transfer of any property or asset that is subject to a lease, license or similar contract, instrument or obligation referred to in 4.15(b)(1) through the assignment or transfer of any such lease, license (11) (an “Initial Agreement”including without limitation, licenses of intellectual property) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer)contracts;
(13xii) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any such Securitization Subsidiary;
(14xiii) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15a) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer Borrower or any Restricted Subsidiary in any manner material to the Issuer that is a Guarantor or such Restricted Subsidiary;
a Foreign Subsidiary or (20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement Subsidiary that is not a Guarantor or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are will not materially less favorable affect Borrower’s or any Guarantor’s ability to the Holders than the encumbrances and restrictions contained in agreements in effect make anticipated principal or interest payments on the Issue Date Loans (as determined in good faith by B▇▇▇▇▇▇▇), provided that in the Issuercase of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Closing Date pursuant to Section 7.1;
(xiv) any Restricted Investment not prohibited by Section 7.2 and any Permitted Investment; or
(xv) any encumbrances or restrictions of the type referred to in Section 7.3(a) or (iib) if above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiv) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction is not materially more disadvantageous to refinancings are, in the Holders than is customary in comparable financings (as determined in good faith by judgment of Borrower, no more restrictive with respect to such dividend and other payment restrictions than those contained in the Issuer) and either dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 7.3, (xi) the Issuer determines priority of any Preferred Stock in good faith that such encumbrance receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction will not materially affect on the Issuer’s ability to make principal distributions on Capital Stock and (ii) the subordination of loans or interest payments advances made to Borrower or a Restricted Subsidiary to other Indebtedness Incurred by Borrower or any such Restricted Subsidiary shall not be deemed a restriction on the Notes ability to make loans or (y) such encumbrance or restriction applies only if a default occurs in respect advances. This Section 7.3 shall not apply from and after the occurrence of a payment or financial covenant relating to such IndebtednessFall-Away Event.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Issuers shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions to either Issuer or any Restricted Subsidiary (1) on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the either Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the either Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the either Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, Date (including, without limitation, pursuant to Existing Indebtedness the First Lien Credit Agreement), (B) contractual encumbrances or restrictions pursuant to the First Lien Credit Agreement and related documentationthe other Credit Agreement Documents, (C) contractual encumbrances or restrictions pursuant to the indentures governing the First-Priority Notes and the ADT First Lien Notes, and (D) in each case, any similar contractual encumbrances or restrictions or any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes and or the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the an Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in Section 4.05(c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business or consistent with past practice or industry norm;
(11) in the case of Section 4.05(c) above, any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including without limitations, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Special Purpose Securitization Subsidiary effected in connection with a Qualified Permitted Securitization Financing; provided, however, that such restrictions apply only to any such Special Purpose Securitization Subsidiary;
(1413) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15a) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the either Issuer or any Restricted Subsidiary in any manner material to the Issuer that is a Subsidiary Guarantor or such Restricted Subsidiary;
a Foreign Subsidiary or (20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement Subsidiary that is not a Subsidiary Guarantor or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are will not materially less favorable affect the Issuers’ ability to the Holders than the encumbrances and restrictions contained in agreements in effect make anticipated principal or interest payments on the Issue Date Notes (as determined in good faith by the IssuerIssuers), provided that in the case of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.03;
(14) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(15) any encumbrances or restrictions of the type referred to in Section 4.05(a), (b) or (iic) if above 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 (14) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction is refinancings are, in the good faith judgment of the Issuers, not materially more disadvantageous restrictive with respect to such dividend and other payment restrictions than those contained in the Holders than is customary in comparable financings dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (as determined in good faith by the Issuer) and either (xi) the Issuer determines priority of any Preferred Stock in good faith that such encumbrance receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction will not materially affect on the Issuer’s ability to make principal distributions on Capital Stock and (ii) the subordination of loans or interest payments advances made to an Issuer or a Restricted Subsidiary to other Indebtedness Incurred by an Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the Notes ability to make loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 1 contract
Sources: Indenture (ADT Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors Subsidiary 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:
(1a) pay dividends or make any other distributions to Company or any Restricted Subsidiary (1) on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are Guarantors;; or
(2b) make loans or advances to the Issuer Company or any Restricted Subsidiary that is a direct or indirect parent of its such Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) (i) contractual encumbrances or restrictions in effect on the Effective Date and (xii) contractual encumbrances or restrictions pursuant to any Credit this Agreement, the Existing Unsecured Notesother Loan Documents, the Credit Agreement and the other Credit Agreement Documents, any Hedging ObligationsPermanent Financing Documents and, in each case, similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or any related documents refinancings of such agreements or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentationinstruments;
(2ii) this the Indenture, the 2019 Notes and or the Guaranteesguarantees thereunder;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4iii) applicable law or any applicable rule, regulation or order;
(5iv) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Company or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(v) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(7vi) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 7.1 and 4.12 Section 7.7 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) vii) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10viii) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11ix) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business;
(x) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business;
(12xi) any encumbrances encumbrance or restrictions pursuant to any agreementrestriction that restricts in a customary manner the subletting, instrument assignment or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing transfer of any property or asset that is subject to a lease, license or similar contract, instrument or obligation referred to in 4.15(b)(1) through the assignment or transfer of any such lease, license (11) (an “Initial Agreement”including without limitations, licenses of intellectual property) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer)contracts;
(13xii) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any such Securitization Subsidiary;
(14xiii) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15a) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer Company or any Restricted Subsidiary in any manner material to the Issuer that is a Guarantor or such Restricted Subsidiary;
a Foreign Subsidiary or (20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement Subsidiary that is not a Guarantor or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are will not materially less favorable affect Company’s or any Guarantor’s ability to the Holders than the encumbrances and restrictions contained in agreements in effect make anticipated principal or interest payments on the Issue Date Loans (as determined in good faith by Company), provided that in the Issuercase of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Effective Date pursuant to Section 7.1;
(xiv) any Restricted Investment not prohibited by Section 7.2 and any Permitted Investment; or
(xv) any encumbrances or restrictions of the type referred to in Section 7.3(a) or (iib) if above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiv) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction is not materially more disadvantageous to refinancings are, in the Holders than is customary in comparable financings (as determined in good faith by judgment of Company, no more restrictive with respect to such dividend and other payment restrictions than those contained in the Issuer) and either dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 7.3, (xi) the Issuer determines priority of any Preferred Stock in good faith that such encumbrance receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction will not materially affect on the Issuer’s ability to make principal distributions on Capital Stock and (ii) the subordination of loans or interest payments advances made to Company or a Restricted Subsidiary to other Indebtedness Incurred by Company or any such Restricted Subsidiary shall not be deemed a restriction on the Notes ability to make loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 1 contract
Sources: Senior Unsecured Bridge Term Loan Credit Agreement (XPO Logistics, Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Issuers shall not, and will the Dutch Issuer shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions to the Dutch Issuer or any Restricted Subsidiary (1) on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Dutch Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Dutch Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Dutch Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including(B) if the Issue Date occurs prior to the Acquisition Completion Date, without limitation, contractual encumbrances or restrictions in effect on the Acquisition Completion Date which are permitted under the Sky Acquisition Agreement and (C) contractual encumbrances or restrictions pursuant to Existing Indebtedness the Credit Agreement, the Escrow Agreement and related documentationthe other Credit Agreement Documents and, in each case, any similar contractual encumbrances or restrictions or any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes and or the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Dutch Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand their Subsidiaries, or Lien on, any the property or assets of the Issuer Person and their Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by suppliers, customers or suppliers landlords under contracts entered into in the ordinary course of businessbusiness or consistent with past practice or industry norm or arising in connection with any Permitted Liens;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of businessbusiness or consistent with past practice or industry norm;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in Section 4.05(c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business or consistent with past practice or industry norm;
(11) in the case of Section 4.05(c) above, any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including without limitation, licenses of Intellectual Property) or asset sale agreements and other agreementscontracts;
(12) [reserved];
(13) other Indebtedness, Disqualified Stock or Preferred Stock (a) of the Issuers or any encumbrances Restricted Subsidiary that is a Subsidiary Guarantor or restrictions pursuant to any agreement, instrument a Foreign Subsidiary or obligation (a “Refinancing Agreement”b) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument Restricted Subsidiary that is not a Subsidiary Guarantor or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such Refinancing Agreement agreement or Amendment taken as a whole are instrument will not materially less favorable adversely affect the Issuers’ ability to make anticipated principal or interest payments on the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates Notes (as determined in good faith by the Dutch Issuer);
; provided that in the case of each of clauses (13a) any encumbrance and (b), such Indebtedness, Disqualified Stock or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only Preferred Stock is permitted to any Securitization Subsidiarybe Incurred subsequent to the Issue Date pursuant to Section 4.03;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(15) any tradingencumbrances or restrictions of the type referred to in Section 4.05(a), netting(b) or (c) above imposed by any amendments, operatingmodifications, constructionrestatements, servicerenewals, supplyincreases, purchasesupplements, sale refundings, replacements or other agreement refinancings of the contracts, instruments or obligations referred to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of businessclauses (1) through (14) above; provided that such agreement prohibits amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the encumbrance of solely the property or assets good faith judgment of the Issuer Dutch Issuer, not materially more restrictive 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. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to the Issuers or a Restricted Subsidiary to other Indebtedness Incurred by the Issuers or any such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does shall not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing be deemed a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal loans or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 1 contract
Sources: Indenture (Stars Group Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will not, and will not permit Permit any of its Restricted Subsidiaries that are not Guarantors Subsidiary 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:
(1a) (i) pay dividends or make any other distributions to the Borrower or any Restricted Subsidiary (1) on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Borrower or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital StockSubsidiary, or subordination of any obligation except (including the application of any remedy bars theretoin each case) to any other obligation, will not be deemed to constitute for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Closing Date, including, without limitation, pursuant to Existing Indebtedness Indebtedness, the Senior Secured Facilities or the Senior Subordinated Bridge B Loan Agreement and their related documentation;
(2ii) this Indenture, the Notes Agreement and the GuaranteesLoans;
(3iii) purchase money obligations for property acquired in the ordinary course of business that impose encumbrances or restrictions on a of the nature discussed in clause (c) above of the property so acquired;
(4iv) applicable law or any applicable rule, regulation or order;
(5v) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Borrower or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this IndenturePerson, including so acquired;
(vi) contracts for the sale of assets, including, without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(7vii) Secured secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 Section 6.03 or 6.04 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) viii) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9ix) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is Subsidiaries permitted to be incurred subsequent to the Issue Closing Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary the provisions of the Issuer subsequent covenant described under Section 6.03, provided that the Borrower determines in good faith at the time such dividend and other payment restrictions are created that such dividend and other payment restrictions do not materially adversely affect the Borrower's ability to pay principal of, and interest on, the Issue Date Loans, except that this proviso shall not apply to Indebtedness of Foreign Subsidiaries incurred in accordance with Section 6.03 of this Agreement (other than pursuant to Section 4.10;6.03(b)(i))
(10x) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11xi) customary provisions contained in leases, subleases, leases or licenses or asset sale agreements of intellectual property and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party similar agreements entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16xii) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiaryinterest;
(17xiii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18xiv) any encumbrances or restrictions arising of the type referred to in connection clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiii) above, 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, no more restrictive with cash respect to such dividend and other payment restrictions than those contained in the dividend or other deposits permitted under Section 4.12;
(19) any encumbrance payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiaryrefinancing; or
(21xv) an agreement or instrument relating to restrictions created in connection with any Indebtedness incurred subsequent to Receivables Facility that, in the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by determination of the Issuer) Borrower, are necessary or (ii) if advisable to effect such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such IndebtednessReceivables Facility.
Appears in 1 contract
Sources: Senior Subordinated Bridge C Loan Agreement (Celanese Ag)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer Borrower will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors (other than Excluded Subsidiaries) to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary Subsidiaries (other than Excluded Subsidiaries) to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Issuer Borrower or any of its Restricted Subsidiaries that are Guarantors(other than Excluded Subsidiaries), or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Issuer Borrower or any of its Restricted Subsidiaries that are Guarantors(other than Excluded Subsidiaries);
(2ii) make loans or advances to the Issuer Borrower or any of its Restricted Subsidiaries that are Guarantors(other than Excluded Subsidiaries); or
(3iii) sell, lease or transfer any of its properties or assets to the Issuer Borrower or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionthan Excluded Subsidiaries).
(b) However, the restrictions in Section 4.15(a10.05(a) above will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreementthis Agreement and other agreements governing Existing Indebtedness, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Closing Date, including, without limitation, pursuant to Existing Indebtedness and related documentation;
(2ii) the documents governing the issuance of debt securities after the Closing Date in compliance with this Indenture, Agreement so long as the Notes and the Guaranteesrelevant restrictions as described in clauses (a)(i) through (a)(iii) of this Section 10.05 are not materially more restrictive than those in this Agreement;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4iii) applicable law or any applicable law, rule, regulation or order;
(5iv) customary non-assignment provisions in contracts, agreements, leases, permits and licenses;
(v) purchase money obligations for property acquired and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (iii) of Section 10.05(a);
(vi) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock stock or assets of such Subsidiarya Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the sale or other disposition;
(7vii) Secured Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness otherwise are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(viii) Liens permitted to be incurred pursuant to Sections 4.10 under Section 10.01 and 4.12 associated agreements that limits limit the right of the debtor to dispose of the assets securing subject to such IndebtednessLiens;
(8) ix) provisions limiting the disposition or distribution of assets or property in joint venture, partnership, membership, stockholder and limited liability company agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements, including owners’, participation or similar agreements governing projects owned through an undivided interest, which limitation is applicable only to the assets that are the subject of such agreements;
(x) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of businessconnection with a Permitted Business;
(9xi) other Indebtedness restrictions or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions conditions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other similar agreement to which the Issuer Borrower or any Restricted Subsidiary of its Restricted Subsidiaries the Borrower is a party entered into in the ordinary course of businessconnection with a Permitted Business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer Borrower or such Restricted Subsidiary that are the subject to such of that agreement, the payment rights arising thereunder or and/or the proceeds thereof and does not extend to any other asset or property of the Issuer Borrower or such Restricted Subsidiary or the assets or property of another any other Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18xii) any encumbrances instrument governing Indebtedness or restrictions arising Capital Stock of a Person acquired by the Borrower 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 cash or other deposits permitted under Section 4.12;
(19) any in contemplation of, or to finance, such acquisition), which encumbrance or restriction that arises is not applicable to any Person, or is agreed to in the ordinary course properties or assets of business and does not detract from any Person, other than the value of Person, or the property or assets of the Issuer or any Restricted Subsidiary Person, so acquired; provided that, in any manner material the case of Indebtedness, such Indebtedness was permitted by the terms of this Agreement to the Issuer or such Restricted Subsidiarybe incurred;
(20xiii) customary provisions restricting dispositions Indebtedness of real property interests set forth in any reciprocal easement agreements a Restricted Subsidiary of the Issuer Borrower existing at the time it became a Restricted Subsidiary if such restriction was not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower;
(xiv) with respect to clause (iii) of Section 10.05(a) only, restrictions encumbering property at the time such property was acquired by the Borrower or any of its Restricted Subsidiary; orSubsidiaries, so long as such restriction relates solely to the property so acquired and was not created in connection with or in anticipation of such acquisition;
(21xv) an agreement provisions limiting the disposition or instrument relating to any Indebtedness incurred subsequent distribution of assets or property in agreements governing Non-Recourse Debt, which limitation is applicable only to the Issue Date assets that are the subject of such agreements;
(ixvi) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either other Indebtedness; provided that (x) the Issuer determines restrictions contained in the agreements governing such Indebtedness are not materially more restrictive, taken as a whole, in the good faith judgment of an authorized officer of the Borrower than those contained in the agreements referenced in clauses (i) and (ii) of this Section 10.05(b) and/or (y) in the case of Indebtedness or other obligations incurred pursuant to clause (xv) of Section 10.04(b), the respective restrictions, to the extent more restrictive than those described in preceding clause (x), apply only to the respective assets and/or Persons so acquired;
(xvii) any encumbrance or restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 10.05(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refunding’s, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvi) of this Section 10.05(b); provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refunding’s, replacements or restriction will refinancings are, in the good faith judgment of a senior financial officer of the Borrower, not materially affect more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the Issuer’s ability dividend or other payment restrictions prior to make principal such amendment, modification, restatement, renewals, increase, supplement, refunding, replacement or interest payments on refinancing; and
(xviii) restrictions imposed by (x) following the Spin-Off and to the extent RJS and its Subsidiaries are direct or indirect Restricted Subsidiaries of the Borrower, the RJS Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessthe Secured Trading Facility.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Borrower or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect (x) on the Closing Date, including pursuant to any the Credit Agreement, the Existing other Credit Agreement Documents, the Senior Unsecured Notes, any Hedging Obligations, or any related documents or (y) on Notes and the Issue Date, including, without limitation, pursuant to Existing Indebtedness Senior Unsecured Notes Indenture and related documentationthe Senior Notes and the Senior Notes Indenture;
(2ii) this Indenture, the Notes Agreement and the Guaranteesother Loan Documents;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4iii) applicable law or any applicable rule, regulation or order;
(5iv) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Borrower or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired, and any agreement or any Restricted Subsidiary not otherwise prohibited by this Indentureother instrument existing on the date of the Post-Closing CMBS Transaction with respect to properties and assets that are subject to the Post-Closing CMBS Transaction;
(v) contracts or agreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(7vi) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 5.02 and 4.12 5.10 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) vii) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10viii) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11ix) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business;
(x) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13xi) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(14xii) other Indebtedness, Disqualified Stock or Preferred Stock (A) of any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which Restricted Subsidiary of the Issuer or any of its Restricted Subsidiaries Borrower that is a party entered into in the ordinary course Guarantor or a Foreign Subsidiary, (B) of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such any Restricted Subsidiary that are the subject to is not a Guarantor or a Foreign Subsidiary so long as such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are shall not materially less favorable affect the Borrower’s ability to the Holders than the encumbrances and restrictions contained in agreements in effect make anticipated principal or interest payments on the Issue Date Loans (as determined in good faith by the IssuerBorrower) or (iiC) if of any Restricted Subsidiary incurred in connection with any Project Financing, provided that in the case of each of clauses (A) and (B), such encumbrance Indebtedness, Disqualified Stock or restriction Preferred Stock is not materially more disadvantageous permitted to be Incurred subsequent to the Holders than is customary in comparable financings Closing Date by Section 5.02; (as determined in good faith xiii) any Restricted Investment not prohibited by the Issuer) Section 5.03 and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.any Permitted Investment; or
Appears in 1 contract
Sources: Senior Unsecured Interim Loan Agreement (Harrahs Entertainment Inc)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Company shall not, and will shall not permit any of its the Restricted Subsidiaries that are is not Guarantors a Guarantor, to, directly or indirectly, indirectly create or permit otherwise cause to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Guarantor to:
(1a) (i) pay dividends or make any other distributions to the Company or any of the Restricted Subsidiaries (1) on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Company or any of its the Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Company or any of its the Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Company or any of its the Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect (x) or entered into or existing on the ClosingAmendment No. 3 Effective Date, including pursuant to any Credit this Agreement, Hedging Obligations and the other documents relating to the Transactions;
(ii) this Agreement, the Existing Unsecured NotesLoan Documents, the Term Loan Documents and, in each case, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentationguarantees thereof;
(2) this Indenture, the Notes and the Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4iii) applicable law or any applicable rule, regulation or order;
(5iv) any agreement or other instrument of a Person, Person or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged merged, amalgamated or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Company or any Restricted Subsidiary in connection with an acquisition from such Personthat, or any other transaction entered into in connection with any such acquisition, merger merger, consolidation or consolidationamalgamation, as which was in effect existence at the time of such acquisitionacquisition or at the time it merges, mergeramalgamates or consolidates with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but not created in contemplation thereof), consolidation which encumbrance or transaction (except restriction or condition set forth in such agreement is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person and its Subsidiaries, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired or any Restricted Subsidiary not otherwise prohibited by this Indenturethe property or assets so assumed;
(v) contracts or agreements for the sale or disposition of assets, including without limitation, customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition Disposition of all or substantially all the Capital Stock or assets of such SubsidiaryRestricted Subsidiary to the extent such sale or Disposition is permitted hereunder;
(7vi) Secured Indebtedness secured by a Lien that is otherwise permitted to be incurred Incurred pursuant to Sections 4.10 6.2 and 4.12 6.7 that limits limit the right of the such Personthe debtor to dispose of the assets securing such Indebtedness;
(8) vii) restrictions on cash (or Cash Equivalents) or other deposits restrictions on or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9viii) customary and usual provisions in joint venture, operating or other Indebtedness or Preferred Stock (i) similar agreements, asset sale agreements and stock sale agreements in connection with the entering into of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10such transaction;
(10ix) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature described in clause (c) of this Section 6.4 on the property so acquired;
(x) customary provisions contained in joint venture leases, subleases, licenses, sublicenses, contracts , asset sale agreements and other similar agreements entered into in the ordinary course of businessbusiness (including leases or licenses of intellectual propertyIntellectual Property Licenses) that impose restrictions of the type described in clause (c) of this Section 6.4 on the property subject to such lease, license, contract or agreement;
(11xi) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementsReserved;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1a) pay dividends or make any other distributions on its Capital Stock to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stockhowever, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) However, Section 4.15(a) will preceding restrictions shall not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) in effect on the Issue Datedate of this Indenture, including, without limitation, pursuant to the Senior Subordinated Notes Indenture, this Indenture, Existing Indebtedness or the Senior Secured Credit Agreement and related documentationdocumentation or (y) entered into thereafter so long as not materially more restrictive than those described in the preceding clause (x);
(2) this Indenture, the Notes and the Guarantees;
(3) purchase money obligations for property acquired in the ordinary course of business that impose encumbrances or restrictions of the nature discussed in clause (c) above on a the property so acquired;
(43) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Company or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this IndenturePerson, including so acquired;
(5) contracts for the sale of assets, including, without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(76) Secured secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 4.03 and 4.12 4.11 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) 8) other Indebtedness or Preferred Stock of Restricted Subsidiaries (i) that are Guarantors which Indebtedness is permitted to be incurred pursuant to an agreement entered into subsequent to the date of the Issuer this Indenture in accordance with Section 4.03 or any Restricted Subsidiary (ii) that is a Guarantor that are Foreign Subsidiaries which Indebtedness is incurred subsequent to the Issue Date date of this Indenture pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.104.03;
(109) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(1110) customary provisions contained in leases, subleases, leases or licenses or asset sale agreements of intellectual property and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party similar agreements entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(1611) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiaryinterest;
(1712) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(1813) any encumbrances or restrictions arising of the type referred to in connection clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1), (2), (4) and (8) above, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors, no more restrictive with cash respect to such dividend and other payment restrictions than those contained in the dividend or other deposits permitted under Section 4.12payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing;
(1914) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets good faith judgment of the Issuer Company necessary or any Restricted Subsidiary in any manner material advisable to effect the Issuer or transactions contemplated under a Qualified Securitization Financing; provided, however, that such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted restrictions apply only to such Securitization Subsidiary; or
(2115) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained that are no more restrictive, in any such agreement or instrument taken as a whole are not materially less favorable to the Holders aggregate, than the encumbrances and restrictions contained in agreements those in effect on of the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect date of a payment or financial covenant relating to such Indebtednessthis Indenture.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital StockSubsidiaries, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness and related documentation;
(2) this Indenture, the Notes, the Note Guarantees, the Intercompany Notes and the Intercompany Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or orderorder or as required by any regulatory authority having jurisdiction over the Issuer or any Restricted Subsidiary or any of their businesses;
(54) any agreement or other instrument of a Person, or (a) relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is Person, or the Successor Company property or assets of the Person, so acquired (b) with respect theretoto any asset acquired, any Subsidiary thereof in existence at the time of the acquisition and not incurred in connection with or agreement or instrument in contemplation of such Person acquisition;
(5) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or any disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary shall pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be deemed acquired Incurred pursuant to Sections 4.03 and 4.08;
(7) restrictions on cash or assumedother deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in agreements and instruments, as including without limitation joint venture agreements and other similar agreements, entered into in the case may beordinary course of business, by and other limitations arising in the ordinary course of business that do not materially detract from the value of the property or assets of the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(69) customary provisions contained in leases, licenses, agreements to provide services and other similar agreements entered into in the ordinary course of business that impose restrictions of the type specified in clause (c) above;
(10) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature specified in clause (c) above; or 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; or
(11) pursuant to any Hedging Obligations;
(12) by virtue of transfer ofor, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by under this Indenture, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Subsidiary;
(7) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only pursuant to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions agreements restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or;
(2114) an agreement any encumbrances or instrument relating restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any Indebtedness incurred subsequent amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (13) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by judgment of the Issuer) or (ii) if such encumbrance or restriction is Board of Directors, not materially more disadvantageous restrictive with respect to such dividend and other payment restrictions than those contained in the Holders than is customary in comparable financings dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(as determined in good faith by the Issuer) and either (x15) the Issuer determines in good faith that such encumbrance Credit Agreement, the Note Purchase Agreement and other Senior Credit Documents, as the same may be amended, restated, modified, renewed, increased, replaced, refunded or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessrefinanced.
Appears in 1 contract
Sources: Indenture (American Seafoods Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital StockSubsidiaries, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to Existing Indebtedness and related documentationthe Senior Credit Documents;
(2) this Indenture, the Notes, the Note Guarantees, the Intercompany Notes and the Intercompany Note Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer or Person, so acquired;
(5) any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all the Capital Stock or assets of such SubsidiaryRestricted Subsidiary pending the closing of such sale or disposition;
(6) Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.08;
(7) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) customary provisions contained in leases, subleases, licenses or asset sale agreements to provide services and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party similar agreements entered into in the ordinary course of business; provided business that such agreement prohibits the encumbrance of solely the property or assets impose restrictions of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiarytype described in clause (c) above;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 1 contract
Sources: Indenture (American Seafoods Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Holdings shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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 the Co-Issuer or any such Restricted Subsidiary to:
(1a) (i) pay dividends or make any other distributions to Holdings or any Restricted Subsidiary (1) on its Capital Stock to the Issuer Stock; or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary;
(2b) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiary; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to Existing Indebtedness the Senior Notes (including any guarantee thereof) and related documentationthe Term Loan Facility (including any guarantee thereof) and (B) contractual encumbrances or restrictions pursuant to the Credit Agreement and the other Credit Agreement Documents and, in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) this Indenture, the Notes (and any Exchange Notes) or the Subsidiary Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Holdings or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 Section 4.03 and Section 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleaseslicenses and other similar agreements entered into in the ordinary course of business;
(11) in the case of clause (c) above, any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or Farm-In Agreements or Farm-Out Agreements relating to leasehold interests in Oil and Gas Properties), license (including without limitations, licenses of intellectual property) or asset sale agreements and other agreementscontracts;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1413) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15a) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer Holdings or any Restricted Subsidiary in any manner material to that is the Issuer Co-Issuer, a Subsidiary Guarantor or such Restricted Subsidiary;
a Foreign Subsidiary or (20b) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement Subsidiary that is not the Co-Issuer, a Subsidiary Guarantor or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the a Foreign Subsidiary so long as such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are will not materially less favorable affect the Issuers’ ability to the Holders than the encumbrances and restrictions contained in agreements in effect make anticipated principal or interest payments on the Issue Date Notes (as determined in good faith by Holdings), provided that in the Issuercase of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.03;
(14) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment;
(15) any customary encumbrances or restrictions imposed pursuant to any agreement of the type described in the definition of “Permitted Business Investment”; or
(16) any encumbrances or restrictions of the type referred to in Section 4.05(a), (b) or (iic) if above 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 (15) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction is not materially more disadvantageous to refinancings are, in the Holders than is customary in comparable financings (as determined in good faith by judgment of Holdings, no more restrictive with respect to such dividend and other payment restrictions than those contained in the Issuer) and either dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (xi) the Issuer determines priority of any Preferred Stock in good faith that such encumbrance receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction will not materially affect on the Issuer’s ability to make principal distributions on Capital Stock and (ii) the subordination of loans or interest payments advances made to Holdings or a Restricted Subsidiary to other Indebtedness Incurred by Holdings or any such Restricted Subsidiary shall not be deemed a restriction on the Notes ability to make loans or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtednessadvances.
Appears in 1 contract
Sources: Indenture (MBOW Four Star, L.L.C.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restrictionSubsidiaries.
(b) However, the preceding restrictions in Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any the Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, Agreement or any related documents or (y) on the Issue Date, including, without limitation, pursuant to the Existing Notes, or other Existing Indebtedness and its related documentation;
(2) this Indenture, the Notes Indenture and the GuaranteesSecurities;
(3) purchase money obligations for property acquired in the ordinary course of business that impose encumbrances or restrictions of the nature discussed in clause (3) of Section 4.15(a) on a the property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(5) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is Person, or the Successor Company with respect theretoproperty or assets of the Person, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Companyso acquired;
(6) any transfer ofcontracts for the sale of assets, agreement to transferincluding, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(7) Secured secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer or Warner Music subsequent to the Issue Date pursuant to clause (1), (4), (11) or (20) of Section 4.104.10(b); provided that either (A) the provisions relating to such encumbrance or restriction contained in such Indebtedness are no less favorable to the Issuer, taken as a whole, as determined by the Board of Directors of the Issuer in good faith than the provisions contained in the Credit Agreement or in the indenture governing the Existing Notes, in each case, as in effect on the Issue Date or (B) any encumbrance or restriction contained in such Indebtedness does not prohibit (except upon a default or event of default thereunder) the payment of dividends in an amount sufficient, as determined by the Board of Directors of the Issuer in good faith, to make scheduled payments of cash interest on the Securities when due;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant of the type referred to in clauses (1), (2) and (3) of Section 4.15(a) imposed by any agreementamendments, instrument modifications, restatements, renewals, increases, supplements, refundings, replacements or obligation refinancings of the contracts, instruments or obligations referred to in clauses (a “Refinancing Agreement”1) effecting an extensionthrough (11) of this Section 4.15(b), provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer’s Board of Directors, no more restrictive 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 of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer)refinancing;
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any such Securitization Subsidiary;; or
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 1 contract
Sources: Indenture (Warner Music Group Corp.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will MPM shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions to MPM or any of the Restricted Subsidiaries (1) on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer MPM or any of its the Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer MPM or any of its the Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer MPM or any of its the Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to the Existing Indebtedness First Lien Notes and related documentationthe guarantees thereof and the indentures relating thereto;
(2) this Indenture, the Notes (and any guarantees thereof), the Security Documents and the GuaranteesIntercreditor Agreement;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer MPM or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toits Subsidiaries, or Lien on, any the property or assets of the Issuer Person or any Restricted Subsidiary not otherwise prohibited by this Indentureits Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such SubsidiaryRestricted Subsidiary pending the closing of such sale or disposition;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations and Capitalized Lease Obligations, in each case for property acquired or leased in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired or leased;
(10) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property subject to such lease;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15i) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer MPM or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
of MPM (20x) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred that is Incurred subsequent to the Issue Date pursuant to Section 4.03 and (iy) if in the encumbrances and restrictions contained in any such agreement or instrument taken as case of a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction Restricted Subsidiary that is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer a Note Guarantor, an Officer reasonably determines in good faith that any such encumbrance or restriction will not materially adversely affect the IssuerMPM’s ability to make anticipated principal or interest payments on the Notes Notes, or (yii) that is Incurred by a Foreign Subsidiary of MPM subsequent to the Issue Date pursuant to Section 4.03;
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(14) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above 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 (13) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if a default occurs refinancings are, in the good faith judgment of MPM, no more restrictive with respect of a payment or financial covenant relating to such Indebtednessdividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to MPM or a Restricted Subsidiary to other Indebtedness Incurred by MPM or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (Momentive Performance Materials Quartz, Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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) to pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors(a) on its Capital Stock, or (b) with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are Guarantors;
(2) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are Guarantors; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
: (1a) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to the Pan-U.S. ABL Facility, the Existing Indebtedness Notes, the 2032 Euro Notes and the related documentation;
documentation in effect on the Issue Date and in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments; (2b) this Indenture, the Notes Securities and the Guarantees;
; (3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4c) applicable law or any applicable rule, regulation or order;
; (5d) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toits Subsidiaries, or Lien on, any the property or assets of the Issuer Person or any Restricted Subsidiary not otherwise prohibited by this Indentureits Subsidiaries, so acquired; (e) contracts or agreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
; (7f) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
; (8) g) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.71
Appears in 1 contract
Sources: Indenture (Constellium Se)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) or entered into on the Issue Date or entered into in connection with the refinancing of the existing indebtedness of Intelsat J▇▇▇▇▇▇, including pursuant to the Credit Agreements and the other Senior Credit Documents, any Backstop Credit Facility, the Intelsat J▇▇▇▇▇▇ Unsecured Credit Agreement, documents and agreements relating to the Specified Intercompany Agreements, the Existing Unsecured Holdings Notes, any Hedging Obligationsthe Existing Subsidiary Notes, or any related documents or (y) on the Issue DateIntelsat Bermuda Loan, including, without limitation, pursuant to Existing Indebtedness the Lockheed Note and related documentationthe New Intelsat J▇▇▇▇▇▇ Unsecured Credit Agreement;
(2) this Indenture, Indenture and the Notes (and the Guaranteesany Exchange Notes) and guarantees thereof;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer Person, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements (including customary provisions in agreements relating to any Joint Venture);
(9) other Indebtedness or Preferred Stock (i) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to nature discussed in clause (c) above on the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10property so acquired;
(10) customary provisions contained in joint venture agreements leases, licenses, contracts and other similar agreements entered into in the ordinary course of businessbusiness that impose restrictions of the type described in clause (c) above on the property subject to such lease;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization FinancingReceivables Financing that, in the good faith judgment of the Issuer, are necessary or advisable in connection therewith; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) agreements and instruments, including agreements and instruments governing Indebtedness, Disqualified Stock or Preferred Stock of any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets Subsidiary of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred Incurred subsequent to the Issue Date and permitted pursuant to Section 4.03; provided that either (iA) if the provisions relating to such encumbrance or restriction contained in such agreements or instruments are no less favorable to the Issuer, taken as a whole, as determined by the Board of Directors of the Issuer in good faith, than the provisions contained in any Credit Agreement and the other Senior Credit Documents, any Backstop Credit Facility, the Intelsat J▇▇▇▇▇▇ Unsecured Credit Agreement, the New Intelsat J▇▇▇▇▇▇ Unsecured Credit Agreement, the Intelsat Bermuda Loan or in an indenture or agreement governing the Existing Holdings Notes, the Existing Subsidiary Notes, or the Notes, in each case, as in effect on the Issue Date or entered into in connection with the refinancing of existing indebtedness of Intelsat J▇▇▇▇▇▇ or (B) such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined by the Issuer in good faith);
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; and
(14) any encumbrances or restrictions of the type referred to in clauses (ya), (b) and (c) above 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 (13) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if refinancings are, in the good faith judgment of the Issuer, no more restrictive as a default occurs in whole with respect of a payment or financial covenant relating to such Indebtednessencumbrances and restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this covenant, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on ordinary shares shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (Intelsat LTD)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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) to pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are GuarantorsUS-DOCS\124080491.2
(a) on its Capital Stock, or (b) with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are Guarantors;
(2) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are Guarantors; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are Guarantors; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1a) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to the Pan-U.S. ABL Facility, the Existing Indebtedness Notes and the related documentationdocumentation in effect on the Issue Date and in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2b) this Indenture, the Notes Securities and the Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4c) applicable law or any applicable rule, regulation or order;
(5d) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toits Subsidiaries, or Lien on, any the property or assets of the Issuer Person or any Restricted Subsidiary not otherwise prohibited by this Indentureits Subsidiaries, so acquired;
(e) contracts or agreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such Restricted Subsidiary;
(7f) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) g) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10h) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11i) purchase money obligations and Capitalized Lease Obligations for property acquired or leased in the ordinary course of business that impose restrictions on the property so acquired or leased;
(j) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business that impose restrictions on the property subject to such lease;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13k) any encumbrance or restriction of a Securitization Subsidiary effected in connection with (A) a Factoring Facility (provided that such encumbrance or restriction (i) exists on the date hereof or (ii) is in the good faith determination of the Issuer (x) necessary or advisable to effect such Receivables Financing and applies only to the relevant Subsidiaries to which such Receivables Financing is made available or (y) not materially more burdensome than the US-DOCS\124080491.2 encumbrances and restrictions under the Factoring Facilities in effect on the date hereof) or (B) a Qualified Securitization Receivables Financing; provided, however, that in the case of this clause (B), such encumbrances or restrictions (i) apply only to any Securitization Subsidiarya Receivables Subsidiary or (ii) are in the good faith determination of the Issuer (x) necessary or advisable to effect such Qualified Receivables Financing and applicable only to the relevant Subsidiaries to which such Receivables Financing is made available or (y) not materially more burdensome than the encumbrances and restrictions under the Factoring Facilities in effect on the date hereof;
(14A) any encumbrance or restriction in connection with Non-Recourse Product Financing other Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which Disqualified Stock of the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property Subsidiaries, or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16B) customary provisions restricting subletting or assignment of any lease governing a leasehold interest Preferred Stock of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into , in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction each case that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred Incurred subsequent to the Issue Date pursuant to Section 4.03; (im) if the encumbrances any Restricted Investment not prohibited by Section 4.04 and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.Permitted Investment;
Appears in 1 contract
Sources: Indenture (Constellium Se)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Holdings shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) pay dividends or make any other distributions on its Capital Stock to the Issuer Holdings or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date or the Acquisition Date, including, without limitation, including pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Senior Credit Documents;
(2) this Indenture, the Notes Notes, the Security Documents and the GuaranteesIntercreditor Agreement;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Holdings or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer or Person, so acquired;
(5) any Restricted Subsidiary not otherwise prohibited by this Indenture, including without limitation, customary restrictions restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all the Capital Stock or assets of such SubsidiaryRestricted Subsidiary pending the closing of such sale or disposition;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations for property acquired in the ordinary course of business or Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, subleases, licenses or asset sale agreements leases and other agreementssimilar agreements entered into in the ordinary course of business that impose restrictions of the type described in clause (c) above on the property subject to such lease;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
Appears in 1 contract
Sources: Indenture (Borden Chemical Inc)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will MPM shall not, and will shall not permit any of its the Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions to MPM or any of the Restricted Subsidiaries (1) on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer MPM or any of its the Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer MPM or any of its the Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer MPM or any of its the Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) on the Issue Date, including, without limitation, including pursuant to the Existing Indebtedness Notes and related documentationthe guarantees thereof and the indentures relating thereto;
(2) this Indenture, the Notes (and any guarantees thereof), the Security Documents and the GuaranteesIntercreditor Agreements;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer MPM or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toits Subsidiaries, or Lien on, any the property or assets of the Issuer Person or any Restricted Subsidiary not otherwise prohibited by this Indentureits Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such SubsidiaryRestricted Subsidiary pending the closing of such sale or disposition;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10) 8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(119) purchase money obligations and Capitalized Lease Obligations, in each case for property acquired or leased in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired or leased;
(10) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property subject to such lease;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) any encumbrance other Indebtedness, Disqualified Stock or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
Preferred Stock (15i) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer MPM or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
of MPM (20x) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred that is Incurred subsequent to the Issue Date pursuant to Section 4.03 and (iy) if in the encumbrances and restrictions contained in any such agreement or instrument taken as case of a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction Restricted Subsidiary that is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer a Note Guarantor, an Officer reasonably determines in good faith that any such encumbrance or restriction will not materially adversely affect the IssuerMPM’s ability to make anticipated principal or interest payments on the Notes Notes, or (yii) that is Incurred by a Foreign Subsidiary of MPM subsequent to the Issue Date pursuant to Section 4.03;
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(14) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above 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 (13) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if a default occurs refinancings are, in the good faith judgment of MPM, no more restrictive with respect of a payment or financial covenant relating to such Indebtednessdividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) 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 (ii) the subordination of loans or advances made to MPM or a Restricted Subsidiary to other Indebtedness Incurred by MPM or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (Momentive Performance Materials Quartz, Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer Company will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1a) pay dividends or make any other distributions on its Capital Stock to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Company or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stockhowever, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction.
(b) However, Section 4.15(a) will preceding restrictions shall not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) in effect on the Issue Datedate of this Indenture, including, without limitation, pursuant to the Senior Subordinated Notes Indenture, this Indenture, Existing Indebtedness or the Credit Agreements and related documentationdocumentation or (y) entered into thereafter so long as not materially more restrictive than those described in the preceding clause (x);
(2) this Indenture, the Notes and the Guarantees;
(3) purchase money obligations for property acquired in the ordinary course of business that impose encumbrances or restrictions of the nature discussed in clause (c) above on a the property so acquired;
(43) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Company or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this IndenturePerson, including so acquired;
(5) contracts for the sale of assets, including, without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(76) Secured secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 4.03 and 4.12 4.11 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) 8) other Indebtedness or Preferred Stock of Restricted Subsidiaries (i) that are Guarantors which Indebtedness is permitted to be incurred pursuant to an agreement entered into subsequent to the date of the Issuer this Indenture in accordance with Section 4.03 or any Restricted Subsidiary (ii) that is a Guarantor that are Foreign Subsidiaries which Indebtedness is incurred subsequent to the Issue Date date of this Indenture pursuant to Section 4.10 clause (3), (10) or (ii18) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.104.03(b);
(109) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(1110) customary provisions contained in leases, subleases, leases or licenses or asset sale agreements of intellectual property and other agreementssimilar agreements entered into in the ordinary course of business;
(11) customary provisions restricting subletting or assignment of any lease governing a leasehold interest;
(12) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(13) any encumbrances or restrictions pursuant of the type referred to in clauses (a), (b) and (c) above imposed by any agreementamendments, instrument modifications, restatements, renewals, increases, supplements, refundings, replacements or obligation refinancings of the contracts, instruments or obligations referred to in clauses (a “Refinancing Agreement”1) effecting an extensionand (4) above, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company's Board of Directors, no more restrictive 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 of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer)refinancing;
(1314) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any such Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;; or
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained that are no more restrictive, in any such agreement or instrument taken as a whole are not materially less favorable to the Holders aggregate, than the encumbrances and restrictions contained in agreements those in effect on of the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect date of a payment or financial covenant relating to such Indebtednessthis Indenture.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1) contractual encumbrances or restrictions in effect (x) pursuant to any Credit Agreement, the Existing Unsecured Notes, any Hedging Obligations, or any related documents or (y) entered into on the Issue Date, including, without limitation, including pursuant to Existing Indebtedness the Credit Agreement and related documentationthe other Senior Credit Documents, the Intelsat ▇▇▇▇▇▇▇ Unsecured Credit Agreement, the New Intelsat ▇▇▇▇▇▇▇ Unsecured Credit Agreement, documents and agreements relating to the Specified Intercompany Agreements, the Holdings Notes, the Luxembourg Notes, the ▇▇▇▇▇▇▇ Notes and the Intelsat Luxembourg Intercompany Loan;
(2) this Indenture, Indenture and the Notes (and the Guaranteesany Exchange Notes and guarantees thereof);
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(54) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisitionacquisition (but not created in contemplation thereof), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer Person, so acquired;
(5) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(76) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 4.03 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) 7) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements (including customary provisions in agreements relating to any Joint Venture);
(9) other Indebtedness or Preferred Stock (i) purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business that impose restrictions of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to nature discussed in clause (c) above on the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10property so acquired;
(10) customary provisions contained in joint venture agreements leases, licenses, contracts and other similar agreements entered into in the ordinary course of businessbusiness that impose restrictions of the type described in clause (c) above on the property subject to such lease;
(11) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreements;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization FinancingReceivables Financing that, in the good faith judgment of the Issuer, are necessary or advisable in connection therewith; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(1412) agreements and instruments, including agreements and instruments governing Indebtedness, Disqualified Stock or Preferred Stock of any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets Subsidiary of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred Incurred subsequent to the Issue Date and permitted pursuant to Section 4.03; provided that either (iA) if the provisions relating to such encumbrance or restriction contained in such agreements or instruments are no less favorable to the Issuer, taken as a whole, as determined by the Board of Directors of the Issuer in good faith, than the provisions contained in the Credit Agreement and the other Senior Credit Documents, the Intelsat ▇▇▇▇▇▇▇ Unsecured Credit Agreement, the New Intelsat ▇▇▇▇▇▇▇ Unsecured Credit Agreement, the Intelsat Luxembourg Intercompany Loan or in an indenture governing the Holdings Notes, the Luxembourg Notes, the ▇▇▇▇▇▇▇ Notes or the Notes, in each case, as in effect or entered into on the Issue Date or (B) such encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined by the Issuer in good faith);
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; and
(14) any encumbrances or restrictions of the type referred to in clauses (ya), (b) and (c) of this Section 4.05 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 (13) above; provided that such encumbrance amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restriction applies only if refinancings are, in the good faith judgment of the Issuer, no more restrictive as a default occurs in whole with respect of a payment or financial covenant relating to such Indebtednessencumbrances and restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on ordinary shares shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Indenture (Intelsat S.A.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly 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 that is not a Guarantor to:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Holdings or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock or (2) with respect to any other interest or participation in, or -175- measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Holdings or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect (x) or entered into on the Third Restatement Date, including pursuant to any Credit this Agreement, the Existing Unsecured Notes, any Loan Documents and the other documents relating to this Agreement and related Hedging Obligations, or any the related documents or (y) documentation, the Fixed Asset Facility Indenture incurred on the Issue Date, including, without limitation, pursuant to Existing Indebtedness date hereof and related documentationHedging Obligations and the related documentation and any documents relating to the Senior Unsecured Notes;
(2ii) this Indenture, the Notes and the Guarantees[Intentionally Omitted];
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4iii) applicable law or any applicable rule, regulation or order;
(5iv) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock capital stock of a Person, which Person is acquired by or merged merged, consolidated or consolidated amalgamated with or into the Issuer Holdings or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction amalgamation, which was in existence at the time of such acquisition or at the time it mergers, consolidates or amalgamates with or into Holdings or any of its Restricted Subsidiaries (except but, in each case, not created in contemplation thereof), which encumbrance or restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toand its Subsidiaries, or Lien on, any the property or assets of the Issuer Person and its Subsidiaries, so acquired;
(v) contracts for the sale or any Restricted Subsidiary not otherwise prohibited by this Indenturedisposition of assets, including without limitation, customary encumbrances or restrictions with respect to a Subsidiary of (i) Holdings or (ii) any of its Restricted Subsidiaries imposed pursuant to an agreement that has been entered into for the sale or other disposition of all or substantially all the Capital Stock or assets of such Subsidiary;
(7vi) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.10 and 4.12 that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10vii) customary provisions in (x) joint venture agreements and other similar agreements entered into in the ordinary course of businessbusiness with respect to the Equity Interests subject to the joint venture and (y) operating or other similar agreements, asset sale agreements, stock sale agreements entered into in connection with the entering into of such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(11viii) purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations to the extent imposing restrictions of the nature discussed in clause (c) above on the property so acquired;
(ix) customary provisions contained in leases, subleases, licenses or asset sale agreements licenses, sublicenses, contracts and other similar agreements, including with respect to intellectual property and other agreements;
(12x) any encumbrances encumbrance or restrictions restriction contained in any documentation relating to a Permitted Receivables Financing;
(xi) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Borrower that is Incurred subsequent to April 4, 2014 pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”)Section 10.2.2; provided that the such encumbrances and restrictions contained in any such Refinancing Agreement agreement or Amendment taken as a whole are instrument will not materially less favorable affect Holdings’ ability to make anticipated principal or interest payment on the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates Loans (as determined by Holdings in good faith by the Issuerfaith);
(13xii) any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing; provided, however, that such restrictions apply only to any Securitization Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable Secured Indebtedness otherwise permitted to the Holders than the encumbrances be Incurred pursuant to Sections 10.2.1 and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness10.
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Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Issuer will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors 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:
(1a) (i) pay dividends or make any other distributions on its Capital Stock to the Issuer Borrower or any of its Restricted Subsidiaries that are Guarantors, (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits, ; or (ii) pay any Indebtedness owed to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries;
(2b) make loans or advances to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Issuer Borrower or any of its Restricted Subsidiaries that are GuarantorsSubsidiaries; provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute except in each case for such an encumbrance or restriction.
(b) However, Section 4.15(a) will not apply to encumbrances or restrictions consisting of, or existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect (x) on the Closing Date, including pursuant to any the Credit Agreements and the other Credit Agreement Documents;
(ii) this Agreement, the Existing Unsecured Loans, Exchange Notes, exchange notes issued in exchange therefor, Permanent Financing, any Hedging Obligationsexchange notes issued in exchange therefor, the Security Documents and the Intercreditor Agreements (and any guarantee documents, security documents and intercreditor agreements or other documents relating to the Exchange Notes, exchange notes issued in exchange therefor, any related documents or (y) on the Issue Date, including, without limitation, pursuant to Existing Indebtedness Permanent Financing and related documentationany exchange notes issued in exchange therefor);
(2) this Indenture, the Notes and the Guarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4iii) applicable law or any applicable rule, regulation or order;
(5iv) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer Borrower or any Restricted Subsidiary which was in connection with an acquisition from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect existence at the time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), merger, consolidation which encumbrance or transaction (except restriction is not applicable to the extent that such Indebtedness was incurred to financeany Person, or otherwise in connection withthe properties or assets of any Person, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), if a Person other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(6) any transfer of, agreement to transfer, option or right with respect toPerson, or Lien on, any the property or assets of the Issuer Person, so acquired;
(v) contracts or any Restricted Subsidiary not otherwise prohibited by this Indentureagreements for the sale of assets, including without limitation, customary restrictions any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or other disposition of the Capital Stock or assets of such SubsidiaryRestricted Subsidiary pending the closing of such sale or disposition;
(7vi) Secured Indebtedness otherwise permitted to be incurred Incurred pursuant to Sections 4.10 6.01 and 4.12 6.02 that limits limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) vii) restrictions on cash or other deposits or net worth imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(9) other Indebtedness or Preferred Stock (i) of the Issuer or any Restricted Subsidiary that is a Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.10 or (ii) that is incurred by a Foreign Subsidiary of the Issuer subsequent to the Issue Date pursuant to Section 4.10;
(10viii) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(11ix) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature discussed in Section 6.06(c) above on the property so acquired;
(x) customary provisions contained in leases, subleases, licenses or asset sale agreements and other agreementssimilar agreements entered into in the ordinary course of business that impose restrictions of the type described in clause (c) above on the property subject to such lease;
(12) any encumbrances or restrictions pursuant to any agreement, instrument or obligation (a “Refinancing Agreement”) effecting an extension, renewal, increase, refunding, replacement or refinancing of any contract, instrument or obligation referred to in 4.15(b)(1) through (11) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement, restatement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Issuer);
(13xi) any encumbrance or restriction of a Securitization Receivables Subsidiary effected in connection with a Qualified Securitization Receivables Financing; provided, however, that such restrictions apply only to any Securitization such Receivables Subsidiary;
(14) any encumbrance or restriction in connection with Non-Recourse Product Financing Indebtedness or Non-Recourse Acquisition Financing Indebtedness;
(15) any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(16) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary;
(17) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(18) any encumbrances or restrictions arising in connection with cash or other deposits permitted under Section 4.12;
(19) any encumbrance or restriction that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or such Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; or
(21) an agreement or instrument relating to any Indebtedness incurred subsequent to the Issue Date (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in agreements in effect on the Issue Date (as determined in good faith by the Issuer) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines in good faith that such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness.
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Sources: Senior Secured Bridge Loan Credit Agreement (Packerware Corp)