Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to: (a) (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (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 Company or any of its Restricted Subsidiaries; (b) make loans or advances to the Company or any of its Restricted Subsidiaries; or (c) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of: (1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof; (2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement; (3) applicable law or any applicable rule, regulation or order; (4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiaries, other than the Person or its subsidiaries, or the property or assets of the Person, so acquired; (5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition; (6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness; (7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; (8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business; (9) 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, licenses and other similar 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; (11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary; (12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 the Company, 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) 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 (NewPage Holdings Inc.), Indenture (Verso Paper Corp.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted the Issuer or such Subsidiary of the Issuer to:
(a) (i) pay dividends or make any other distributions to the Company Issuer or any Subsidiary of its Restricted Subsidiaries the Issuer (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 Company Issuer or any Subsidiary of its Restricted Subsidiariesthe Issuer;
(b) make loans or advances to the Company Issuer or any Subsidiary of its Restricted Subsidiariesthe Issuer; or
(c) sell, lease or transfer any of its properties or assets to the Company Issuer or any Subsidiary of its Restricted Subsidiaries; the Issuer, except in each case for such encumbrances or restrictions existing under or by reason of:
(1i) (A) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Original Notes Issuance Date (including the AP5 Term Loan, provided that the Issuer shall repay and extinguish such Indebtedness no later the next succeeding Business Day following the Original Notes Issuance Date, including pursuant to a Credit Agreement ) and the other Senior Credit Documents and (B) contractual encumbrances or restrictions pursuant to the indentures governing the Second-Lien NotesSecuritization Transaction, Senior Subordinated Notes Tax Equity Transactions and the guarantees thereofWarehouse Financing and any contractual encumbrances or restrictions that are similar to the foregoing, contractual encumbrances or restrictions under other financing transactions that are similar to the foregoing, or any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments similar to any of the foregoing; including in each case, for the avoidance of doubt, any scheduled or mandatory amortizations, restrictions on dividends or cash sweep provisions thereunder;
(2ii) this Indenture, the Securities (and any Exchange Securities and Notes or the other Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3iii) applicable law or any applicable rule, regulation or orderorder or the terms of any license, authorization, concession or permit provided by any Governmental Authority;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired (or assumed in connection with the acquisition of property) by the Company Issuer or any Restricted Subsidiary of the Issuer which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or and its subsidiariesSubsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired;
(5v) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary of the Issuer imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending of the closing of such sale or dispositionIssuer;
(6vi) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections Section 4.03 and 4.12 Section 4.10 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9viii) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10ix) customary provisions contained in leases, licenses subleases, licenses, sublicenses and other similar agreements entered into in the ordinary course of business that impose restrictions or consistent with past practice or industry norm;
(x) in the case of the type described in clause (c) above on the property subject to such lease;
(11) 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 Receivables Subsidiary effected in connection with a Qualified Receivables Financing; providedlease, howeverlicense or similar contract, that or the assignment or transfer of any such restrictions apply only to such Receivables Subsidiarylease, license (including, without limitation, licenses of intellectual property) or other contracts;
(12xi) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary such Subsidiaries of the Company (i) that is Finance Co. Issuer issued prior to or a Guarantor that is Incurred subsequent to following the Existing First-Lien Issue Original Notes Issuance Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03in compliance with this Indenture;
(13xii) customary restrictions and conditions contained in the document relating to any Restricted Investment not prohibited by Section 4.04 Lien so long as such Lien is a Permitted Lien and any Permitted Investment; orsuch restrictions or conditions relate only to the specific asset subject to such Lien;
(14xiii) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(xiv) any encumbrances or restrictions of the type referred to in clauses (aSection 4.05(a), (b) and 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 (1i) through (13xiii) above; provided that provided, that, such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the CompanyIssuer, no 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 Issuer or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company 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: Fourth Supplemental Indenture (Sunnova Energy International Inc.), Fourth Supplemental Indenture (Sunnova Energy International Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) (ii)(a) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (1) on its Capital Stock; Stock or (2) with respect to any other interest or participation in, or measured by, its profits; , or (iib) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
, (bii) make loans or advances to the Company or any of its Restricted Subsidiaries; or
Subsidiaries or (ciii) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries; , except in each case for such encumbrances or restrictions existing under or by reason of:
of (a) the terms of any Indebtedness permitted by this Indenture to be incurred by any Subsidiary of the Company; provided, that, any such Indebtedness permits the payment of cash dividends to the Company in an amount sufficient to enable the Company to make payments of (A) interest required to be paid in respect of the Notes, (B) interest required to be paid in respect of the 1997 Notes, the 1998 Notes, the 1999 Notes and the 2001 Subordinated Notes and (C) after July 1, 2002, dividends required to be paid in respect of the Series A and Series B Preferred Stock and interest required to be paid in respect of the Notes, if issued, in each case, in accordance with the terms thereof (except during the continuance of a default or event of default under such other Indebtedness), (b) contractual encumbrances Existing Indebtedness or restrictions the PM&C Credit Facility, each as in effect on the Existing First-Lien Issue Closing Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2c) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security DocumentsNotes, the Existing First-Lien Notes Subsidiary Guarantees, the 1997 Indenture, the Existing First-Lien Notes1997 Notes and the 1997 Notes Subsidiary Guarantees, the indenture governing the Existing Secured Notes1998 Indenture, the Existing Secured Notes1998 Notes and the 1998 Notes Subsidiary Guarantees, the indenture governing the New Second-Lien Notes1999 Indenture, the New Second-Lien Notes1999 Notes and the 1999 Notes Subsidiary Guarantees, and the 2001 Indenture, the indenture governing 2001 Subordinated Notes and the New 2001 Subordinated NotesNotes Subsidiary Guarantees, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3d) applicable law or any applicable rulelaw, regulation or order;
(4e) any agreement instrument governing Indebtedness or other instrument relating to Indebtedness Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiary which was Subsidiaries as in existence effect at the time of such acquisition (but not created except to the extent such Indebtedness was incurred in connection with or in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or and its subsidiariesSubsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired;
, (5f) contracts or agreements for the sale by reason of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 customary non-assignment provisions in leases and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
business and consistent with past practices or (8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses and other similar 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;
(11g) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock agreement for the sale of any Restricted Subsidiary of the Company (i) or its assets that is Finance Co. or a Guarantor restricts distributions by that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 the Company, 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) 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 advancespending its sale.
Appears in 2 contracts
Sources: Indenture (Pegasus Satellite Communications Inc), Indenture (Pegasus Communications Corp /)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) to (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (1) distribution 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 Company or any of its Restricted Subsidiaries;
other Subsidiary, (biii) make loans or advances to any Investment in the Company or any of its Restricted Subsidiaries; or
other Subsidiary or (civ) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries; other Subsidiary, except in each case for such encumbrances for: (a) any encumbrance or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions restriction pursuant to any agreement in effect on the Existing First-Lien Issue Date; (b) any encumbrance or restriction, with respect to a Subsidiary that is not a Subsidiary of the Company on the Issue Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or any Restricted Subsidiary which was in existence at the time such Person becomes a Subsidiary of such acquisition (but the Company and not created incurred in connection with, or in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate of, such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiaries, other than the Person or its subsidiaries, or the property or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to becoming a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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 Subsidiary; (c) above on the property so acquired;
customary non-assignment or subletting provisions of any lease, license or other contract; (10d) customary provisions contained in leases, licenses and other similar agreements any restriction entered into in the ordinary course of business that impose restrictions contained in any lease of any Subsidiary or any security agreement or mortgage securing Indebtedness of any Subsidiary to the type described in clause (c) above on extent such restriction restricts the transfer of property subject to such security agreement, mortgage or lease;
; (11e) any restriction contained in an agreement pursuant to which Permitted Subsidiary Indebtedness is incurred; and (f) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; providedexisting under any agreement that amends, howeversubstitutes, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtednessrestructures, Disqualified Stock supplements, extends, renews, refinances or Preferred Stock of any Restricted Subsidiary of replaces or otherwise modifies the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to agreements containing the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 in the type referred to in foregoing clauses (a), (b) and ), (c), (d) above imposed by any amendmentsor (e), modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses this clause (1) through (13) abovef); provided that the terms and conditions of any such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements encumbrances or refinancings are, in the good faith judgment of the Company, restrictions are no more restrictive with in any material respect to such dividend and other payment restrictions than those contained in the dividend under 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 pursuant to the Company agreement evidencing the Indebtedness so amended, substituted, restructured, supplemented, extended, renewed, refinanced, replaced 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 advancesmodified.
Appears in 2 contracts
Sources: Indenture (Bally Franchise RSC Inc), Indenture (Bally Total Fitness Holding Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall Parent Guarantor will not, and shall will not permit any of its Restricted Subsidiaries (other than the Issuer or the Guarantors) to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Issuer or the Guarantors) to:
(a) (i) pay dividends or make any other distributions to the Company Parent Guarantor or any of its Restricted Subsidiaries (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 Company Parent Guarantor or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Parent Guarantor or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company Parent Guarantor or any of its Restricted Subsidiaries; except in each case for such . However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of Parent Guarantor or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Date, including (1) pursuant to a the Senior Credit Agreement and the other documents relating to the Senior Credit Documents and pursuant to the indentures governing the Second-Lien NotesAgreement, Senior Subordinated Notes and the guarantees thereof;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured NotesNotes Indenture, the Existing Secured Notes, the indenture governing guarantees thereof and other documents relating to the New Second-Lien Existing Secured Notes Indenture, the Existing Secured Notes and the related guarantees and security documents, intercreditor agreement and other documents relating to the Existing Secured Notes Indenture and (3) related Swap Contracts;
(ii) this Indenture, the Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementGuarantees and other documents relating to this Indenture;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or merged, amalgamated or consolidated with or into Parent Guarantor or any Restricted Subsidiary which that was in existence at the time of such acquisition (but or at the time it merges with or into Parent Guarantor 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 or to provide all or any portion of the funds or credit support utilized to consummate such acquisitionthereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquiredacquired or designated; provided that in connection with a merger, amalgamation or consolidation under this clause (iv), if a Person other than Parent Guarantor or such Restricted Subsidiary is the successor company with respect to such merger, amalgamation or consolidation, any agreement or instrument of such Person or any Subsidiary of such Person, shall be deemed acquired or assumed, as the case may be, by Parent Guarantor or such Restricted Subsidiary, as the case may be, at the time of such merger, amalgamation or consolidation;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) vii) customary provisions in joint venture operating or other similar agreements, asset sale agreements and other similar 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;
(9) purchase money , to the extent such 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;
(10ix) customary provisions contained in leases, licenses sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of business that to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease;
(11x) any encumbrance or restriction of a Receivables Subsidiary 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; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12xi) other Indebtedness, Disqualified Stock or Preferred Stock of Parent Guarantor or any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 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 Parent Guarantor or a direct or indirect parent of Parent Guarantor in good faith) or (ii2) 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, the Existing Secured Notes Indenture or the Senior Credit Agreement (as determined by Parent Guarantor in good faith);
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 3.3 and 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 is Incurred by do not, individually or in the aggregate, (x) detract from the value of the property or assets of Parent Guarantor or any Restricted Subsidiary of in any manner material to Parent Guarantor or any Restricted Subsidiary or (y) materially affect the Company that is not a Issuer’s ability to make future principal or interest payments on the Notes, in each case, as determined by Parent Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03in good faith;
(13xiv) any Restricted Investment not prohibited by Section 4.04 customary provisions in joint venture agreements or arrangements and any Permitted Investmentother similar agreements or arrangements relating solely to the applicable joint venture; orand
(14xv) 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 (1i) through (13xiv) above; provided that such amendmentsencumbrances and restrictions contained in any such amendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings refinancing are, in the good faith judgment of Parent Guarantor, not materially more restrictive, taken as a whole, than the Company, no more restrictive with respect to such dividend encumbrances 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 4.053.6, (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 Company Parent Guarantor or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company Parent Guarantor or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 2 contracts
Sources: Supplemental Indenture (Axalta Coating Systems Ltd.), Indenture (Axalta Coating Systems Ltd.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(a) (i1) pay dividends or make any other distributions on its Capital Stock to the Company Issuer or any of its Restricted Subsidiaries (1) on its Capital Stock; 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 Company Issuer or any of its Restricted SubsidiariesSubsidiaries that are Guarantors;
(b2) make loans or advances to the Company Issuer or any of its Restricted SubsidiariesSubsidiaries that are Guarantors; or
(c3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted SubsidiariesSubsidiaries that are Guarantors; except in each case for 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 Notes, the New Secured Notes, any Hedging Obligations, or any related documents or (y) on the Existing First-Lien Issue Date, including including, without limitation, pursuant to a Credit Agreement Existing Indebtedness and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofrelated documentation;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) Notes and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementGuarantees;
(3) purchase money obligations that impose encumbrances or restrictions on a property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(45) any agreement or other instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company Issuer or any Restricted Subsidiary, or which agreement or instrument is assumed by the Issuer or any Restricted Subsidiary which was in existence 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 acquisition, merger, consolidation or transaction (but not created except to the extent that such Indebtedness was incurred to finance, or otherwise in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate connection with, such acquisition, merger, consolidation or transaction); provided that, for purposes of this clause (5), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any if a Person or its subsidiaries, other than the Issuer is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or its subsidiariesany 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 the Lien on, any property or assets of the Person, so acquired;
(5) contracts Issuer or agreements for the sale of assetsany Restricted Subsidiary not otherwise prohibited by this Indenture, including any restriction 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 pending the closing of such sale or dispositionSubsidiary;
(67) Secured Indebtedness otherwise permitted to be Incurred incurred pursuant to Sections 4.03 4.10 and 4.12 that limit limits the right of the debtor to dispose of the assets securing such Indebtedness;
(7) 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;
(8) 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;
(9) 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;
(1011) customary provisions contained in leases, subleases, licenses or asset sale agreements and other similar 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 leaseagreements;
(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 Section 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 Receivables Securitization Subsidiary effected in connection with a Qualified Receivables Securitization Financing; provided, however, that such restrictions apply only to such Receivables any Securitization Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 encumbrance or restrictions 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 type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings ordinary course of the contracts, instruments or obligations referred to in clauses (1) through (13) abovebusiness; provided that such amendmentsagreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, modifications, restatements, renewals, increases, supplements, refundings, replacements the payment rights arising thereunder or refinancings are, 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 good faith judgment 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 Company, no more restrictive with respect Issuer or any Restricted Subsidiary in any manner material to the Issuer or such dividend and other payment restrictions than those contained Restricted Subsidiary;
(20) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the dividend Issuer or other payment restrictions prior any Restricted Subsidiary; or
(21) an agreement or instrument relating to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, any Indebtedness incurred subsequent to the Issue Date (i) if the priority of encumbrances and restrictions contained in any Preferred Stock such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encumbrances and restrictions contained in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction 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 distributions on Capital Stock and (ii) the subordination of loans principal 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 interest payments on the ability Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to make loans or advancessuch Indebtedness.
Appears in 2 contracts
Sources: Indenture (Warner Music Group Corp.), Indenture (Warner Music Group Corp.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly (a) Directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than an Excluded Subsidiary) to:
(a) (i) pay dividends or make any other distributions on its Capital Stock to the Company Borrower or any of its Restricted Subsidiaries (1) on its Capital Stock; other than Excluded Subsidiaries), or (2) with respect to any other interest or participation in, or measured by, its profits; , or (ii) pay any Indebtedness indebtedness owed to the Company Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries);
(bii) make loans or advances to the Company Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries); or
(ciii) sell, lease or transfer any of its properties or assets to the Company Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries; except ).
(b) The restrictions in each case for such Section 6.05(a) above shall not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect this Agreement and other agreements governing Existing Indebtedness on the Existing First-Lien Issue Closing Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Senior Notes Documents, the Existing First-Lien Additional Senior Notes Indenture, Documents and any documents relating to the Existing First-Lien Notes, the indenture governing the Existing Senior Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3iii) applicable law or any applicable law, rule, regulation or order;
(4iv) 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 Section 6.05(a)(iii);
(vi) any agreement for the sale or other disposition of the stock or assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the sale or other disposition;
(vii) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness 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 under Section 6.02 and associated agreements that limit the right of the debtor to dispose of the assets subject to such Liens;
(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 under contracts entered into in connection with a Permitted Business;
(xi) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or similar agreement to which the Borrower or any Restricted Subsidiary is a party entered into in connection with a Permitted Business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are the subject of that agreement, the payment rights arising thereunder and/or the proceeds thereof and not to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of any other Restricted Subsidiary;
(xii) any instrument relating to governing Indebtedness or Capital Stock of a Person acquired by the Company Borrower or any of its Restricted Subsidiary which was Subsidiaries as in existence effect at the time of such acquisition (but not created except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 arethat, in the good faith judgment case of the CompanyIndebtedness, 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) the subordination of loans or advances made to the Company or a Restricted Subsidiary of the Company to other Indebtedness Incurred was permitted by the Company or any such Restricted Subsidiary shall not terms of this Agreement to be deemed a restriction on the ability to make loans or advances.incurred;
Appears in 2 contracts
Sources: Credit Agreement (NRG Energy, Inc.), Credit Agreement (NRG Energy, Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(ai) (i) pay dividends or make any other distributions to the Company Issuer or any of its Restricted Subsidiaries (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits; Stock or (ii) pay any Indebtedness owed to the Company Issuer or any of its Restricted Subsidiaries;
(bii) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries;
(iii) create, incur, assume or suffer to exist Liens on the Collateral of such Person for the benefit of the Holders with respect to the Notes and the Obligations or under this Indenture; or
(civ) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries; except in each case for such .
(b) However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect or entered into on the Existing First-Lien Issue Date, including pursuant to a the Senior Credit Agreement Agreements and the other documents relating to the Senior Credit Documents Agreements, related Swap Contracts, the Existing Indentures, the Existing Notes, the related guarantees and the other documents relating to the Existing Indentures and Indebtedness permitted pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes Sections 3.3(b)(i)(C) and the guarantees thereof(iii);
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and Notes, the Guarantees, the Security Documents, the Existing First-Lien Notes Intercreditor Agreements and other documents relating to this Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured NotesGuarantees, the Existing Secured Notes, Security Documents and the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementAgreements;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by or merged, amalgamated or consolidated with or into the Company Issuer or any Restricted Subsidiary which that was in existence at the time of such acquisition (but or at the time it merges with or into the Issuer or any Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in each case, not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisitionthereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquiredacquired or designated; provided that in connection with a merger, amalgamation or consolidation under this clause (iv), if a Person other than the Issuer or such Subsidiary is the successor company with respect to such merger, amalgamation or consolidation, any agreement or instrument of such Person or any Subsidiary of such Person, shall be deemed acquired or assumed, as the case may be, by the Issuer or such Subsidiary, as the case may be, at the time of such merger, amalgamation or consolidation;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) vii) 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 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;
(9viii) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased Obligations in the ordinary course of business that impose to the extent imposing restrictions of the nature discussed in clause (cSection 3.6(a)(iii) above on the property so acquired;
(10ix) customary provisions contained in leases, licenses licenses, contracts and other similar agreements entered into in the ordinary course of business that impose to the extent imposing restrictions of the type described in clause (c) above in the first paragraph of this Section 3.6 on the property subject to such lease;
(11x) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; providedFactoring that, howeverin the good faith determination of the Issuer, that is necessary or advisable to effect such restrictions apply only to such Qualified Receivables SubsidiaryFactoring;
(12xi) any encumbrance or restriction contained in other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor Issuer that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 3.3; provided that such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Issuer’s ability to make future principal or interest payments on the Notes (ii) that is Incurred as determined by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03Issuer in good faith);
(13xii) any Restricted Investment not prohibited by Section 4.04 encumbrance or restriction contained in secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 3.3 and any Permitted Investment; or3.5 to the extent limiting the right of the debtor to dispose of the assets securing such Indebtedness;
(14xiii) any encumbrance or restriction arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that does not, individually or in the aggregate, (x) detract from the value of the property or assets of the Issuer or any Subsidiary in any manner material to the Issuer or any Subsidiary or (y) materially affect the Issuer’s ability to make future principal or interest payments on the Notes (as determined by the Issuer in good faith);
(xiv) encumbrances or restrictions existing under, by reason of or with respect to Permitted Refinancings; provided that the encumbrances and restrictions contained in the agreements governing those Permitted Refinancings are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced; and
(xv) 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 the immediately preceding clauses (1i) through (13xiv) aboveof this Section 3.6(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings refinancing are, in the good faith judgment of the CompanyIssuer, no more restrictive as a whole with respect to such dividend and other payment encumbrances or restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. .
(c) For purposes of determining compliance with this Section 4.053.6, (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 Company Issuer or a Restricted Subsidiary of the Company Issuer to other Indebtedness Incurred by the Company 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 Company Issuer shall not, and shall not permit any of its the Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) (iA) pay dividends or make any other distributions to the Company Issuer or any of its the Restricted Subsidiaries (1i) on its Capital Stock; Stock or (2ii) with respect to any other interest or participation in, or measured by, its profits; or (iiB) pay any Indebtedness owed to the Company Issuer or any of its the Restricted Subsidiaries;
(b2) make loans or advances to the Company Issuer or any of its the Restricted Subsidiaries; or
or (c3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its the Restricted Subsidiaries; except in each case for such .
(b) Section 4.08(a) hereof shall not apply to encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a the Credit Agreement and the other Senior Credit Documents Agreement Documents, the First Lien Junior Priority Notes Indenture, the First Lien Junior Priority Notes, the First Lien Junior Priority Note Guarantees, the collateral documents and pursuant intercreditor agreements related to the indentures governing the Second-First Lien Junior Priority Notes, Senior Subordinated the Existing First Lien Junior Priority Notes Indenture, the Existing First Lien Junior Priority Notes, the Existing First Lien Junior Priority Note Guarantees, the collateral documents and intercreditor agreements related to the Existing First Lien Junior Priority Notes, the Unsecured Notes Indentures, the Unsecured Notes and the guarantees thereofUnsecured Note Guarantees;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured NotesNote Guarantees, the Existing Secured Notes, Collateral Documents and the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementAgreements;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Issuer or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesSubsidiaries, or the property or assets of the PersonPerson or its Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 4.09 and 4.12 hereof that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits (including escrowed funds) or net worth imposed by customers 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) purchase money obligations or and 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 (c3) of Section 4.08(a) above on the property so acquiredacquired or leased;
(10) customary provisions contained in leases, licenses and other similar agreements entered into in the ordinary course of business that impose restrictions of the type described in clause (c3) of Section 4.08(a) above on the property subject to such lease;
(11) any encumbrance or restriction on a Special Purpose Securitization Subsidiary that, in the good faith judgment of a Receivables Subsidiary effected senior management or the Board of Directors of the Issuer, is reasonably required in connection with a Qualified Receivables Financingtherewith; provided, however, that such restrictions apply only to such Receivables SubsidiarySpecial Purpose Securitization Subsidiaries;
(12) other Indebtedness, Indebtedness or Disqualified Stock of the Issuer or any of its Restricted Subsidiaries or Preferred Stock of any Restricted Non-Guarantor Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date and permitted pursuant to Section 4.03 4.09; provided that 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 (ii) that is Incurred as determined in good faith by any Restricted Subsidiary senior management or the Board of Directors of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03;
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted InvestmentIssuer); or
(1413) any encumbrances or restrictions of the type referred to in clauses (a1), (b2) and (c3) above 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 (1312) aboveof this Section 4.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of senior management or the CompanyBoard of Directors of the Issuer, no more restrictive with respect to such dividend encumbrances and other payment restrictions taken as a whole than those contained in the dividend encumbrances or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. .
(c) For purposes of determining compliance with this Section 4.054.08, (i1) 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 (ii2) the subordination of loans or advances made to the Company Issuer or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company 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 (Domus Holdings Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Company BV Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions on its Capital Stock to the Company BV Borrower or any of its Restricted Subsidiaries (1) on its Capital Stock; Subsidiaries, or (2) with respect to any other interest or participation in, or measured by, its profits; , or (ii) pay any Indebtedness owed to the Company BV Borrower or any of its Restricted Subsidiaries;
(bii) make loans or advances to the Company BV Borrower or any of its Restricted Subsidiaries; or
(ciii) sell, lease or transfer any of its properties or assets to the Company BV Borrower or any of its Restricted Subsidiaries; except .
(b) The restrictions in each case for such Section 7.02(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and (x) pursuant to the indentures governing Credit Agreement or related documents as in effect on the Second-Lien Effective Date or (y) on the Effective Date, including, without limitation, pursuant to Existing Indebtedness and related documentation;
(ii) this Agreement, the Senior Notes Indenture, the Senior Notes, the Senior Subordinated Notes Indenture, the Senior Subordinated Notes and the guarantees thereofCredit Agreement and the related Guarantees;
(2iii) this Indenture, purchase money obligations or other obligations described in Section 7.03(b)(iv) for property acquired in the Securities (and any Exchange Securities and Note Guarantees thereofordinary course of business that in each case impose restrictions of the nature discussed in Section 7.02(a)(iii) and on the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreementproperty so acquired;
(3iv) applicable law or any applicable rule, regulation or order;
(4v) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company BV Borrower or any Restricted Subsidiary which was in existence at the time of such acquisition (but not created in connection therewith or in contemplation thereof or to provide all or any a portion of the funds or credit support utilized to consummate such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
(5vi) contracts or agreements for the sale of assets, including any restriction 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 disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6vii) Secured Indebtedness otherwise permitted to be Incurred incurred pursuant to Sections 4.03 Section 7.03 and 4.12 Section 7.06 that limit limits the right of the debtor to dispose of the assets securing such Indebtedness;
(7viii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) ix) other Indebtedness or Preferred Stock of the BV Borrower or any Guarantor, in each case, that was or is incurred subsequent to April 27, 2006 pursuant to Section 7.03;
(x) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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;
(10xi) customary provisions contained in leases, subleases, licenses or asset sale agreements and other similar 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 leaseagreements;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03;
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(14xii) any encumbrances or restrictions of the type referred to in clauses Section 7.02(a) (ai), (bii) and (ciii) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1this Section 7.02(b)(i) through (13) abovexi); provided 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 the CompanyBV Borrower’s Board of Directors, no more restrictive not materially less favorable to the Lenders than encumbrances and restrictions contained in such predecessor agreements and do not materially affect the BV Borrower’s and Guarantors’ ability, taken as a whole, to make payments of interest and scheduled payments of principal in respect of such Loans, in each case, as and when due; provided further, however, that with respect to agreements existing on April 27, 2006, any refinancings or amendments thereof contain such dividend and other payment encumbrances or restrictions that are not materially less favorable to the Lenders than those the encumbrances or restrictions 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 agreements as in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction effect on the ability April 27, 2006; and
(xiii) Indebtedness incurred pursuant 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 advancesSection 7.03(b)(xviii).
Appears in 1 contract
Sources: Senior Subordinated Term Loan Agreement (Sensata Technologies B.V.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall Lux Co-Issuer will not, and shall will not permit any of its Restricted Subsidiaries (other than the U.S. Co-Issuer or the Guarantors) to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the U.S. Co-Issuer or the Guarantors) to:
(a) (i) pay dividends or make any other distributions to the Company Lux Co-Issuer or any of its Restricted Subsidiaries (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 Company Lux Co-Issuer or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Lux Co-Issuer or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company Lux Co-Issuer or any of its Restricted Subsidiaries; except in each case for such . However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of the Lux Co-Issuer or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Date, including pursuant to a the Senior Credit Agreement and the other documents relating to the Senior Credit Documents Agreement, related Swap Contracts, the Existing Indenture, the Existing Notes, the related guarantees and the other documents relating to the Existing Notes and Indebtedness permitted pursuant to clause (c) of the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofdefinition of “Permitted Debt”;
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing Guarantees and other documents relating to this Indenture and the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by or merged, amalgamated or consolidated with or into the Company Lux Co-Issuer or any Restricted Subsidiary which or an Unrestricted Subsidiary that is designated a Restricted Subsidiary that was in existence at the time of such acquisition (but or at the time it merges with or into the Lux Co-Issuer 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 or to provide all or any portion of the funds or credit support utilized to consummate such acquisitionthereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquiredacquired or designated; provided that in connection with a merger, amalgamation or consolidation under this clause (iv), if a Person other than the Lux Co-Issuer or such Restricted Subsidiary is the Successor Company with respect to such merger, amalgamation or consolidation, any agreement or instrument of such Person or any Subsidiary of such Person, shall be deemed acquired or assumed, as the case may be, by the Lux Co-Issuer or such Restricted Subsidiary, as the case may be, at the time of such merger, amalgamation or consolidation;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) vii) customary provisions in joint venture operating or other similar agreements, asset sale agreements and other similar stock sale agreements entered into in connection with the ordinary course entering into of businesssuch transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(9viii) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased in to the ordinary course of business that extent such obligations impose restrictions of the nature discussed in clause (c) above of this Section 3.6 on the property so acquired;
(10ix) customary provisions contained in leases, licenses sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of business that to the extent such obligations impose restrictions of the type described in clause (c) above of this Section 3.6 on the property subject to such lease;
(11x) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Factoring or Qualified Receivables Financing that, in the good faith determination of the Lux Co-Issuer, is necessary or advisable to effect such Qualified Receivables Factoring or Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiaryas applicable;
(12xi) any encumbrance or restriction contained in other Indebtedness, Disqualified Stock or Preferred Stock of the Lux Co-Issuer or any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 3.3; provided that (i) such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Issuers’ ability to make anticipated principal or interest payments on the Notes (as determined by the Lux Co-Issuer or a direct or indirect parent of the Lux 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 this Indenture, the Existing Indenture or the Senior Credit Agreement as of the Issue Date (as determined by the Lux Co-Issuer in good faith);
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 3.3 and 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 is Incurred by do not, individually or in the aggregate, (x) detract from the value of the property or assets of the Lux Co-Issuer or any Restricted Subsidiary of the Company that is not a Guarantor subsequent in any manner material to the Existing FirstLux Co-Lien Issue Date pursuant Issuer or any Restricted Subsidiary or (y) materially affect the Issuers’ ability to Section 4.03make future principal or interest payments on the Notes, in each case, as determined by the Lux Co-Issuer in good faith;
(13xiv) any Restricted Investment not prohibited by Section 4.04 customary provisions in joint venture agreements or arrangements and any Permitted Investmentother similar agreements or arrangements relating solely to the applicable joint venture; orand
(14xv) 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 the immediately preceding clauses (1i) through (13) abovexiv); provided that such amendmentsencumbrances and restrictions contained in any such amendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings refinancing are, in the good faith judgment of the CompanyLux Co-Issuer, no not materially more restrictive with respect to such dividend restrictive, taken as a whole, than the encumbrances 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 4.053.6, (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 Company Lux Co-Issuer or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company Lux 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
Sources: Indenture (Ortho Clinical Diagnostics Holdings PLC)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
: (a) (i) pay dividends or make any other distributions to the Company on or any in respect of its Restricted Subsidiaries (1) on its Capital StockEquity Interests; or (2) with respect to any other interest or participation in, or measured by, its profits; or (ii) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(b) make loans or advances or pay any Indebtedness or other obligation owed to the Company or any of its other Restricted SubsidiariesSubsidiary; or
or (c) sell, lease or transfer any of its properties or assets to the Company or any of its other Restricted Subsidiaries; Subsidiary, except in each case for such for:
(i) encumbrances or restrictions existing under or by reason of:of applicable law;
(1ii) contractual encumbrances or restrictions existing under this Agreement, the Notes and the Note Guarantees;
(iii) non-assignment provisions of any contract, license, permit or lease entered into in the ordinary course of business;
(iv) encumbrances or restrictions existing under agreements existing on the date of this Agreement (including, without limitation, the Credit Agreement) as in effect on the Existing First-Lien Issue Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofthat date;
(2v) restrictions on the transfer of assets subject to any Lien permitted under this Indenture, Agreement imposed by the Securities (and any Exchange Securities and Note Guarantees thereof) and holder of such Lien or the Security Documents, exercise of or the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreementright to exercise customary remedies with respect to such assets;
(3vi) applicable law encumbrances or any applicable rule, regulation or orderrestrictions placed on inventory held for transfer under exchange agreements;
(4vii) any agreement customary encumbrances or other instrument relating to Indebtedness of a Person acquired restrictions placed on initial NYMEX margin deposits or imposed by the Company or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiaries, other than the Person or its subsidiaries, or the property or assets of the Person, so acquiredmargin loans;
(5viii) contracts encumbrances or agreements for the sale of assets, including any restriction restrictions placed on petroleum racks owned jointly with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionBP Amoco;
(6ix) Secured Indebtedness otherwise permitted encumbrances or restrictions relating to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such IndebtednessCompany's (or its Subsidiaries') exchange trading privileges;
(7x) restrictions on or cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) xi) restrictions on the transfer of assets imposed under any agreement to sell such assets including Equity Interests of a Subsidiary permitted under this Agreement to any Person pending the closing of such sale;
(xii) any instrument governing Acquired Indebtedness or any agreement (including any Equity Interest) relating to any property, asset or business acquired by the Company or any of its Subsidiaries, which restrictions existed at the time of the acquisition, were not put in place in connection with or in anticipation of such acquisition and which encumbrance or restriction is not applicable to any Person (and its Subsidiaries), or the properties or assets of any Person, other than the Person or the properties or assets of the Person (and its Subsidiaries) so acquired or to any property, asset or business, other than the property, assets or business so acquired;
(xiii) any other agreement governing Indebtedness entered into after the Issue Date that contains encumbrances and restrictions that are not materially more restrictive with respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date;
(xiv) customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements entered into in the ordinary course of businessbusiness that restrict the transfer of ownership interests in, or property of, such partnership, limited liability company, joint venture or similar Person;
(9xv) purchase money obligations or Capitalized Lease Obligations, Purchase Money Indebtedness incurred in each case for property so acquired or leased in the ordinary course of business compliance with Section 4.09 hereof that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10) customary provisions contained in leases, licenses and other similar 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 leaseassets acquired;
(11xvi) any encumbrance or restriction under any instrument governing Indebtedness of a Receivables Restricted Subsidiary effected in connection with that is a Qualified Receivables FinancingForeign Subsidiary, which encumbrance or restriction is not applicable to any Persons, or the property or assets of any Persons, other than Restricted Subsidiaries that are Foreign Subsidiaries; provided, however, that such restrictions apply only to such Receivables Subsidiary;and
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03;
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(14xvii) 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 amendments or refinancings of the contracts, instruments or obligations referred to in clauses (1i) through (13xvi) above; provided PROVIDED that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements amendments or refinancings are, in the good faith judgment of the Company's Board of Directors, no not materially more restrictive with respect to such dividend encumbrances 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 amendment 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
Sources: Indenture (Transmontaigne Inc)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall IssuerParent Guarantor will not, and shall will not permit any of its Restricted Subsidiaries (other than the Issuer or the Guarantors) to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Issuer or the Guarantors) to:
(a) (i) pay dividends or make any other distributions to the Company IssuerParent Guarantor or any of its Restricted Subsidiaries (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 Company IssuerParent Guarantor or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company IssuerParent Guarantor or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company IssuerParent Guarantor or any of its Restricted Subsidiaries; except in each case for such . However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of the IssuerParent Guarantor or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Date, including (1) pursuant to a the Senior Credit Agreement and the other documents relating to the Senior Credit Documents Agreement, (2) the Existing Unsecured Notes Indenture, the Existing Unsecured Notes, the guarantees thereof and pursuant other documents relating to the indentures governing Existing Unsecured Notes Indenture, the Second-Lien Notes, Senior Subordinated Existing Unsecured Notes and the related guarantees thereofand other documents relating to the Existing Unsecured Notes Indenture and (3) related Swap Contracts;
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementGuarantees and other documents relating to this Indenture;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by or merged, amalgamated or consolidated with or into the Company IssuerParent Guarantor or any Restricted Subsidiary which that was in existence at the time of such acquisition (but or at the time it merges with or into the IssuerParent Guarantor 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 or to provide all or any portion of the funds or credit support utilized to consummate such acquisitionthereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquiredacquired or designated; provided that in connection with a merger, amalgamation or consolidation under this clause (iv), if a Person other than the IssuerParent Guarantor or such Restricted Subsidiary is the successor company with respect to such merger, amalgamation or consolidation, any agreement or instrument of such Person or any Subsidiary of such Person, shall be deemed acquired or assumed, as the case may be, by the IssuerParent Guarantor or such Restricted Subsidiary, as the case may be, at the time of such merger, amalgamation or consolidation;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) vii) customary provisions in joint venture operating or other similar agreements, asset sale agreements and other similar 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;
(9) purchase money , to the extent such 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;
(10ix) customary provisions contained in leases, licenses sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of business that to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease;
(11x) any encumbrance or restriction of a Receivables Subsidiary 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; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12xi) other Indebtedness, Disqualified Stock or Preferred Stock of the IssuerParent Guarantor or any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 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 IssuerParent Guarantor or a direct or indirect parent of the IssuerParent Guarantor in good faith) or (ii2) 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, the Existing Unsecured Notes Indenture or the Senior Credit Agreement (as determined by the IssuerParent Guarantor in good faith);
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 3.3 and 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 is Incurred by do not, individually or in the aggregate, (x) detract from the value of the property or assets of the IssuerParent Guarantor or any Restricted Subsidiary of the Company that is not a Guarantor subsequent in any manner material to the Existing First-Lien Issue Date pursuant IssuerParent Guarantor or any Restricted Subsidiary or (y) materially affect the Issuer’s ability to Section 4.03make future principal or interest payments on the Notes, in each case, as determined by the IssuerParent Guarantor in good faith;
(13xiv) any Restricted Investment not prohibited by Section 4.04 customary provisions in joint venture agreements or arrangements and any Permitted Investmentother similar agreements or arrangements relating solely to the applicable joint venture; orand
(14xv) 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 (1i) through (13xiv) aboveof this Section 3.6; provided that such amendmentsencumbrances and restrictions contained in any such amendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings refinancing are, in the good faith judgment of the CompanyIssuerParent Guarantor, no not materially more restrictive with respect to such dividend restrictive, taken as a whole, than the encumbrances 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 4.053.6, (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 Company IssuerParent Guarantor or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company IssuerParent Guarantor or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Supplemental Indenture (Axalta Coating Systems Ltd.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company Borrower and Starwood REIT shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) (i) pay dividends or make any other distributions to the Company Borrower or Starwood REIT or any of its Restricted Subsidiaries Subsidiary (1A) on its their Capital Stock; Stock or (2B) with respect to any other interest or participation in, or measured by, its profits; , or (ii) pay any Indebtedness owed to the Company Borrower, Starwood REIT or any Restricted Subsidiary (other than in respect of its Restricted Subsidiaries;
the subordination of such Indebtedness to the Senior Secured Notes, the Affiliate Guaranty or any other Indebtedness incurred pursuant to the terms of this Agreement, as the case may be), (b) make loans or advances to the Company Borrower, Starwood REIT or any of its Restricted Subsidiaries; or
Subsidiary or (c) sell, lease lease, or transfer any of its their properties or assets to the Company Borrower, Starwood REIT or any of its Restricted Subsidiaries; Subsidiary, except (in each case case) for such encumbrances or restrictions existing under or by reason of:
of (1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Original Closing Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2) this Indenture, the Securities Bank Credit Facility (and any Exchange Securities and Note Guarantees thereofrelated security agreements) and the Security Documentsany Guaranties thereof, this Agreement, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Senior Secured Notes, the Existing Secured NotesAffiliate Guaranty, the indenture governing the New Second-Lien Notesindebtedness incurred pursuant to clause (h) and (j) of Section 5.9 and any related security agreements, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes(3) this Agreement, the Senior Lien Intercreditor AgreementSecured Notes and the Affiliate Guaranty, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement instrument governing Indebtedness or other instrument relating to Indebtedness Capital Stock of a Person acquired by the Company Borrower, Starwood REIT or any Restricted Subsidiary which was as in existence effect at the time of such acquisition (but not created except to the extent such Indebtedness was incurred in connection with or in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
, (5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts easo▇ ▇▇ customary non-assignment provisions in leases entered into in the ordinary course of business;
, (8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(96) purchase money obligations or Capitalized Lease Obligations, in each case for property so acquired or leased in the ordinary course of business or secured indebtedness permitted to be incurred and secured hereby that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
acquired or which secures such indebtedness, (107) customary provisions contained in leases, licenses and other similar 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;
(11) applicable law or any encumbrance applicable rule or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock order of any Restricted Subsidiary of the Company Gaming Authority, (i) that is Finance Co. 8) customary restrictions imposed by asset sale or a Guarantor that is Incurred subsequent stock purchase agreements relating to the Existing First-Lien Issue Date pursuant to Section 4.03 sale of assets or (ii) that is Incurred stock by the Borrower, Starwood REIT or any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03;
Subsidiary, (13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(149) 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) 8 above; provided , provided, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the CompanyBorrower and Starwood REIT, 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 , or (10) customary encumbrances or restrictions, pursuant to the terms of determining compliance with this Section 4.05, (i) the priority of any Preferred Stock in receiving permitted to be issued pursuant to Section 5.9, on the payment of 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 other 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 issuer of such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advancesPreferred Stock.
Appears in 1 contract
Sources: Senior Secured Note Agreement (Starwood Hotels & Resorts)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company Issuer or any of its Restricted Subsidiaries (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 Company Issuer or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a the Credit Agreements, the other Credit Agreement Documents, the Existing Second Priority Notes Indentures, the First Priority Notes Indenture, the Existing First Priority Notes Indenture and the other Senior Credit Documents and pursuant to the indentures indenture governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofNotes;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees guarantees thereof) ), the Security Documents and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Issuer or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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 (cSection 4.05(c) above on the property so acquired;
(10) customary provisions contained in leases, licenses and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 the Company, 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) 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
Sources: Indenture (Berry Plastics Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall CommScope will not, and shall will not permit any of its Restricted Subsidiaries (other than the Issuer or the Guarantors) to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Issuer or the Guarantors) to:
(a) (i) pay dividends or make any other distributions to the Company CommScope or any of its Restricted Subsidiaries (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 Company CommScope or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company CommScope or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company CommScope or any of its Restricted Subsidiaries; except in each case for such . However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of CommScope or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Date, including pursuant to a the Senior Credit Agreement Agreements and the other documents relating to the Senior Credit Documents Agreements, related Swap Contracts and Indebtedness permitted pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofclause (iii) of Section 3.3(b);
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture Guarantees and the indentures governing the Existing Secured Holdco Notes, the Existing Opco Notes and the Secured Notes, Notes and the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreementguarantees and other documents relating to such indentures;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or merged, amalgamated or consolidated with or into CommScope or any Restricted Subsidiary which or an Unrestricted Subsidiary that is designated a Restricted Subsidiary that was in existence at the time of such acquisition (but or at the time it merges with or into CommScope 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 or to provide all or any portion of the funds or credit support utilized to consummate such acquisitionthereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquiredacquired or designated; provided that in connection with a merger, amalgamation or consolidation under this clause (iv), if a Person other than CommScope or such Restricted Subsidiary is the successor company with respect to such merger, amalgamation or consolidation, any agreement or instrument of such Person or any Subsidiary of such Person, shall be deemed acquired or assumed, as the case may be, by CommScope or such Restricted Subsidiary, as the case may be, at the time of such merger, amalgamation or consolidation;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) vii) customary provisions in joint venture operating or other similar agreements, asset sale agreements and other similar 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;
(9) purchase money , to the extent such 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 of the first paragraph of this Section 3.6 on the property so acquired;
(10ix) customary provisions contained in leases, licenses sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of business that to the extent such obligations impose restrictions of the type described in clause (c) above of the first paragraph of this Section 3.6 on the property subject to such lease;
(11x) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing that, in the good faith determination of the Issuer, are necessary or advisable to effect such Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12xi) other Indebtedness, Disqualified Stock or Preferred Stock of CommScope or any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 3.3; provided that (i) 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 CommScope 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 this Indenture, the indentures governing the Opco Notes and the Secured Notes or the Senior Credit Agreements (as determined by CommScope in good faith);
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 3.3 and 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 is Incurred by do not, individually or in the aggregate, (x) detract from the value of the property or assets of CommScope or any Restricted Subsidiary of in any manner material to CommScope or any Restricted Subsidiary or (y) materially affect the Company that is not a Guarantor subsequent Issuer’s ability to make future principal or interest payments on the Existing First-Lien Issue Date pursuant to Section 4.03Notes, in each case, as determined by CommScope in good faith;
(13xiv) any Restricted Investment not prohibited by Section 4.04 customary provisions in joint venture agreements or arrangements and any Permitted Investmentother similar agreements or arrangements relating solely to the applicable joint venture; orand
(14xv) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above of the first paragraph 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 the immediately preceding clauses (1i) through (13) abovexiv); provided that such amendmentsencumbrances and restrictions contained in any such amendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings refinancing are, in the good faith judgment of CommScope, not materially more restrictive, taken as a whole, than the Company, no more restrictive with respect to such dividend encumbrances 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 4.053.6, (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 Company CommScope or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company CommScope 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. The Company shall (a) BP I and BP II will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(ai) (iA) pay dividends or make any other distributions to the Company BP I, BP II or any of its Restricted Subsidiaries (1) on its Capital Stock; Stock or (2) with respect to any other interest or participation in, or measured by, its profits; or (iiB) pay any Indebtedness owed to the Company BP I, BP II or any of its Restricted Subsidiaries;
(bii) make loans or advances to the Company BP I, BP II or any of its Restricted Subsidiaries; or
(ciii) sell, lease or transfer any of its properties or assets to the Company BP I, BP II or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a the Senior Secured Credit Agreement Facilities, Local Facilities, local overdraft and other local working capital facilities, the other Senior Credit Documents and pursuant to Secured Notes Indenture, the indentures governing February 2011 Senior Secured Indenture, the Second-Lien NotesFebruary 2011 Senior Indenture, the October 2010 Senior Secured Indenture, the October 2010 Senior Indenture, the May 2010 Indenture, the 2009 Indenture, 2007 Senior Note Indenture, the 2007 Senior Subordinated Notes Indenture, and the guarantees thereof2007 UK Intercreditor Agreement, the First Lien Intercreditor Agreement, the Senior Secured Notes Security Documents, the February 2011 Security Documents, the October 2010 Security Documents, the 2009 Security Documents, the 2007 Notes Security Documents and the security documents with respect to the Senior Secured Credit Facilities and the Local Facilities;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Senior Notes Indenture, the Existing First-Lien NotesSenior Notes (and guarantees thereof), the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor any Currency Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement any agreement or instrument creating a Hedging Obligation and any Other Intercreditor Agreementintercreditor agreements;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company BP I, BP II or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or and its subsidiariesSubsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 any Restricted Investment not prohibited by Section 4.04 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtednessany Permitted Investment;
(7) restrictions on cash or other deposits or net worth imposed by regulatory authorities (including with respect to tax obligations and value-added taxes), in connection with deductions made for tax, pension, national insurance and other similar purposes or for the benefit of customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements, similar agreements relating solely to such joint venture and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 the Company, 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) 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 Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiaries (other than the Guarantors) to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Guarantors) to:
(aA) (i) pay dividends or make any other distributions to the Company Issuer or any of its Restricted Subsidiaries (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 Company Issuer or any of its Restricted Subsidiaries;
(bB) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries; or
(cC) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries; except in each case for such .
(b) However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of the Issuer or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Acquisition Closing Date, including pursuant to a the Senior Credit Agreement Agreements and the other documents relating to the Senior Credit Documents Agreements, related Swap Contracts, the New Secured Notes Indenture, the New Secured Notes, the related guarantees and the other documents relating to the New Secured Notes Indenture, the Existing Indentures, the Existing Notes, the related guarantees and the other documents relating to the Existing Indentures and Indebtedness permitted pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofSection 3.3(b)(iii);
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security DocumentsNotes, the Existing First-Lien Notes Guarantees, the Escrow Agreement, the Keepwell Agreement and other documents relating to this Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured NotesGuarantees, the Existing Secured Notes, Escrow Agreement and the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Keepwell Agreement;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by or merged, amalgamated or consolidated with or into the Company Issuer or any Restricted Subsidiary which or an Unrestricted Subsidiary that is designated a Restricted Subsidiary that was in existence at the time of such acquisition (but or at the time it merges with or into the Issuer 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 or to provide all or any portion of the funds or credit support utilized to consummate such acquisitionthereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquiredacquired or designated; provided that in connection with a merger, amalgamation or consolidation under this clause (iv), if a Person other than the Issuer or such Restricted Subsidiary is the successor company with respect to such merger, amalgamation or consolidation, any agreement or instrument of such Person or any Subsidiary of such Person, shall be deemed acquired or assumed, as the case may be, by the Issuer or such Restricted Subsidiary, as the case may be, at the time of such merger, amalgamation or consolidation;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) vii) customary provisions in (x) joint venture agreements or arrangements and other similar agreements or arrangements relating solely to the applicable joint venture and (y) operating or other similar agreements, asset sale agreements and stock sale agreements entered into in connection with the ordinary course entering into of businesssuch transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(9viii) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased in to the ordinary course of business that extent such obligations impose restrictions of the nature discussed in clause (c) above in the first paragraph of this Section 3.6 on the property so acquired;
(10ix) customary provisions contained in leases, licenses sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of business that to the extent such obligations impose restrictions of the type described in clause (c) above in the first paragraph of this Section 3.6 on the property subject to such lease;
(11x) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Factoring or a Qualified Receivables Financing that, in the good faith determination of the Issuer or any direct or indirect parent of the Issuer, is necessary or advisable to effect such Qualified Receivables Factoring or Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12xi) any encumbrance or restriction contained in other Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Acquisition Closing Date pursuant to Section 4.03 3.3; provided that such encumbrances and restrictions will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (iias determined in good faith by the Issuer or any direct or indirect parent of the Issuer);
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 3.3 and 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 is Incurred by does 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 any Restricted Subsidiary or (y) materially affect the Issuer’s ability to make future principal or interest payments on the Notes, in each case, as determined in good faith by the Issuer or any direct or indirect parent of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03Issuer;
(13xiv) any Restricted Investment encumbrance or restriction existing under, by reason or with respect to Refinancing Indebtedness; provided that such encumbrances and restrictions, taken as a whole, are not prohibited materially less favorable to the holders than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refinanced (as determined in good faith by Section 4.04 and the Issuer or any Permitted Investmentdirect or indirect parent of the Issuer); orand
(14xv) any encumbrances encumbrance or restrictions of the type referred to in clauses (a), (b) and (c) above restriction imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in the immediately preceding clauses (1i) through (13xiv) aboveof this Section 3.6(b); provided that such amendmentsencumbrances and restrictions contained in any such amendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings refinancing are, in the good faith judgment of the CompanyIssuer or any direct or indirect parent of the Issuer, no not materially more restrictive with respect to such dividend restrictive, taken as a whole, than the encumbrances 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. .
(c) For purposes of determining compliance with this Section 4.053.6, (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 Company Issuer or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company 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. The Company IssuersParent shall not, and the Dutch Issuer shall not permit any of its the Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company Dutch IssuerParent or any of its Restricted Subsidiaries Subsidiary (1) on its Capital Stock; 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 Company Dutch IssuerParent or any of its Restricted SubsidiariesSubsidiary;
(b) make loans or advances to the Company Dutch IssuerParent or any of its Restricted SubsidiariesSubsidiary; or
(c) sell, lease or transfer any of its properties or assets to the Company Dutch IssuerParent or any of its Restricted SubsidiariesSubsidiary; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including (B) if the Issue Date occurs prior to the Acquisition Completion Date, 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 a the Credit Agreement, the Escrow Agreement and the other Senior Credit Agreement Documents and pursuant to the indentures governing the Second-Lien Notesand, Senior Subordinated Notes and the guarantees thereofin 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 Securities (and any Exchange Securities and Note Guarantees thereof) and Notes or the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementSubsidiary Guarantees;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Dutch IssuerParent or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesand their Subsidiaries, or the property or assets of the PersonPerson and their Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections Section 4.03 and Section 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by suppliers, customers or 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;
(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;
(9) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (cSection 4.05(c) above on the property so acquired;
(10) customary provisions contained in leases, licenses and other similar 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 leaseor 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 Receivables Subsidiary effected in connection with a Qualified Receivables Financing; providedlease, howeverlicense or similar contract, that or the assignment or transfer of any such restrictions apply only to such Receivables Subsidiarylease, license (including without limitation, licenses of Intellectual Property) or other contracts;
(12) [reserved];
(13) other Indebtedness, Disqualified Stock or Preferred Stock (a) of the IssuersParent or any Restricted Subsidiary that is a Subsidiary Guarantor or a Foreign Subsidiary or (b) of any Restricted Subsidiary of the Company (i) that is Finance Co. not a Subsidiary Guarantor or a Guarantor Foreign Subsidiary so long as such encumbrances and restrictions contained in any agreement or instrument will not materially adversely affect the Issuers’ ability to make anticipated principal or interest payments on the Notes (as determined in good faith by the Dutch IssuerParent); 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 Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03;
(1314) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(1415) any encumbrances or restrictions of the type referred to in clauses (aSection 4.05(a), (b) and 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 (1314) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the CompanyDutch IssuerParent, no 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 IssuersParent or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company IssuersParent 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. The Company shall Parent Guarantor will not, and shall will not permit any of its Restricted Subsidiaries (other than the Issuer or the Guarantors) to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Issuer or the Guarantors) to:: [[5541447]]
(a) (i) pay dividends or make any other distributions to the Company Parent Guarantor or any of its Restricted Subsidiaries (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 Company Parent Guarantor or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Parent Guarantor or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company Parent Guarantor or any of its Restricted Subsidiaries; except in each case for such . However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions of Parent Guarantor or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Date, including (i) pursuant to a the Senior Credit Agreement and the other documents relating to the Senior Credit Documents Agreement, (ii) the Existing Notes Indentures, the Existing Notes, the guarantees thereof and pursuant other documents relating to the indentures governing Existing Notes Indentures, the Second-Lien Notes, Senior Subordinated Existing Notes and the related guarantees thereofand other documents relating to the Existing Notes Indentures and (iii) related Swap Contracts;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementGuarantees and other documents relating to this Indenture;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or merged, amalgamated or consolidated with or into Parent Guarantor or any Restricted Subsidiary which that was in existence at the time of such acquisition (but or at the time it merges with or into Parent Guarantor 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 or to provide all or any portion of the funds or credit support utilized to consummate such acquisitionthereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquiredacquired or designated; provided that in connection with a merger, amalgamation or consolidation under this clause (4), if a Person other than Parent Guarantor or such Restricted Subsidiary is the successor company with respect to such merger, amalgamation or consolidation, any agreement or instrument of such Person or any Subsidiary of such Person, shall be deemed acquired or assumed, as the case may be, by Parent Guarantor or such Restricted Subsidiary, as the case may be, at the time of such merger, amalgamation or consolidation;
(5) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) 7) customary provisions in joint venture operating or other similar agreements, asset sale agreements and other similar stock sale agreements entered into in connection with the ordinary course entering into of businesssuch transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(9) 8) purchase money obligations or Capitalized for property acquired and Financing Lease Obligations, in each case for property so acquired or leased in to the ordinary course of business that extent such obligations impose restrictions of the nature discussed in clause (c) above on the property so acquired;; [[5541447]]
(109) customary provisions contained in leases, licenses sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in to the ordinary course of business that extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease;
(1110) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing that, in the good faith determination of the Designating Party, is necessary or advisable to effect such Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(1211) other Indebtedness, Disqualified Stock or Preferred Stock of Parent Guarantor or any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 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 Parent Guarantor or a direct or indirect parent of Parent Guarantor in good faith) or (ii2) that is Incurred by such encumbrances and restrictions contained in any Restricted Subsidiary agreement or instrument taken as a whole are not materially less favorable to the Holders of the Company that is not a Notes than the encumbrances and restrictions contained in this Indenture, the Existing Notes Indentures or the Senior Credit Agreement (as determined by Parent Guarantor subsequent in good faith);
(12) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 3.3 and 3.5 to the Existing First-Lien Issue Date pursuant extent limiting the right of the debtor to Section 4.03dispose of the assets securing such Indebtedness;
(13) any encumbrance or restriction arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, (x) detract from the value of the property or assets of Parent Guarantor or any Restricted Investment not prohibited Subsidiary in any manner material to Parent Guarantor or any Restricted Subsidiary or (y) materially affect the Issuer’s ability to make future principal or interest payments on the Notes, in each case, as determined by Section 4.04 and any Permitted Investment; orParent Guarantor in good faith;
(14) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to the applicable joint venture; and
(15) 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 (1314) above; provided that such amendmentsencumbrances and restrictions contained in any such amendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings refinancing are, in the good faith judgment of Parent Guarantor, not materially more restrictive, taken as a whole, than the Company, no more restrictive with respect to such dividend encumbrances 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 4.053.6, (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 Company Parent Guarantor or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company Parent Guarantor 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. The Company shall Parent Guarantor will not, and shall will not permit any of its Restricted Subsidiaries (other than the Issuers or the Guarantors) to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Issuers or the Guarantors) to:
(a) (i) pay dividends or make any other distributions to the Company Parent Guarantor or any of its Restricted Subsidiaries (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 Company Parent Guarantor or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Parent Guarantor or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company Parent Guarantor or any of its Restricted Subsidiaries; except in each case for such . However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of Parent Guarantor or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Date, including (i) pursuant to a the Senior Credit Agreement and the other documents relating to the Senior Credit Documents Agreement, (ii) the Existing Indentures, the Existing Notes, the guarantees thereof and pursuant other documents relating to the indentures governing Existing Indentures, the Second-Lien Notes, Senior Subordinated Existing Notes and the related guarantees thereofand other documents relating to the Existing Notes Indentures and (iii) related Swap Contracts;
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementGuarantees and other documents relating to this Indenture;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or merged, amalgamated or consolidated with or into Parent Guarantor or any Restricted Subsidiary which that was in existence at the time of such acquisition (but or at the time it merges with or into Parent Guarantor 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 or to provide all or any portion of the funds or credit support utilized to consummate such acquisitionthereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquiredacquired or designated; provided that in connection with a merger, amalgamation or consolidation under this clause (iv), if a Person other than Parent Guarantor or such Restricted Subsidiary is the successor company with respect to such merger, amalgamation or consolidation, any agreement or instrument of such Person or any Subsidiary of such Person, shall be deemed acquired or assumed, as the case may be, by Parent Guarantor or such Restricted Subsidiary, as the case may be, at the time of such merger, amalgamation or consolidation;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) vii) customary provisions in joint venture operating or other similar agreements, asset sale agreements and other similar stock sale agreements entered into in connection with the ordinary course entering into of businesssuch transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(9viii) purchase money obligations or Capitalized for property acquired and Financing Lease Obligations, in each case for property so acquired or leased in to the ordinary course of business that extent such obligations impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(10ix) customary provisions contained in leases, licenses sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in to the ordinary course of business that extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease;
(11x) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing that, in the good faith determination of the Designating Party, is necessary or advisable to effect such Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12xi) other Indebtedness, Disqualified Stock or Preferred Stock of Parent Guarantor or any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 3.3; provided that (1) such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Issuers’ ability to make anticipated principal or interest payments on the Notes (as determined by Parent Guarantor or a direct or indirect parent of Parent Guarantor in good faith) or (ii2) 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, the Existing Indentures or the Senior Credit Agreement (as determined by Parent Guarantor in good faith);
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 3.3 and 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 is Incurred by do not, individually or in the aggregate, (x) detract from the value of the property or assets of Parent Guarantor or any Restricted Subsidiary of in any manner material to Parent Guarantor or any Restricted Subsidiary or (y) materially affect the Company that is not a Issuers’ ability to make future principal or interest payments on the Notes, in each case, as determined by Parent Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03in good faith;
(13xiv) any Restricted Investment not prohibited by Section 4.04 customary provisions in joint venture agreements or arrangements and any Permitted Investmentother similar agreements or arrangements relating solely to the applicable joint venture; orand
(14xv) 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 (1i) through (13xiv) above; provided that such amendmentsencumbrances and restrictions contained in any such amendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings refinancing are, in the good faith judgment of Parent Guarantor, not materially more restrictive, taken as a whole, than the Company, no more restrictive with respect to such dividend encumbrances 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 4.053.6, (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 Company Parent Guarantor or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company Parent Guarantor 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. The Company Hexion shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company Hexion or any of its Restricted Subsidiaries (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 Company Hexion or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Hexion or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company Hexion or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a Credit Agreement and each of the other Existing First Lien Notes Indentures, the New First Lien Notes Indenture, the ABL Facility, the Senior Credit Documents and pursuant to Documents, the indentures governing Existing Debentures, the Second-Lien Existing Senior Secured Notes, Senior Subordinated the Existing Second Lien Notes and the guarantees thereof;
(2) this Indenture, the Securities Notes (and any Exchange Securities and Note Guarantees guarantees thereof) and ), the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Senior Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other and the Second Lien Intercreditor Agreement;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Hexion or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesSubsidiaries, or the property or assets of the PersonPerson or its Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses leases and other similar agreements entered into in the ordinary course of business that impose restrictions of the type described nature discussed in clause (c) above on the property subject to such lease;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 the Company, 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) 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
Sources: Indenture (Hexion Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(ai) (ia) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (1) on its Capital Stock; Stock or (2) with respect to any other interest or participation in, or measured by, its profits; , or (iib) pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries;
(bii) make loans or advances to the Company or any of its Restricted Subsidiaries;
(iii) grant liens or grant security interests on its assets in favor of the Holders of Senior Notes or guarantee the payment of the Senior Notes; or
(civ) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries; , except in each case for such encumbrances or restrictions existing under or by reason of:
(1a) contractual encumbrances or restrictions Existing Indebtedness as in effect on the Existing First-Lien Issue Datedate of this Indenture; provided, including pursuant that any such encumbrances and restrictions existing in the 13% Note Indenture will be amended as of the date of this Indenture to a Credit Agreement and permit the other activities described in clauses (i) - (iv) above with respect to Holders of the Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3) applicable law or any applicable rule, regulation or order;
(4b) any agreement Credit Agreement creating or other instrument relating to evidencing Indebtedness of a Person acquired permitted by the Company or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiaries, other than the Person or its subsidiaries, or the property or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to of Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03;
(13) any Restricted Investment not prohibited by Section 4.04 4.09 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 thereof;
(c) the Indenture and the Senior Notes;
(d) applicable law;
(e) by reason of customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
(f) purchase money obligations or Vendor Debt for property acquired in the ordinary course of business that impose restrictions of the contracts, instruments or obligations referred nature described in clause (iv) above on the property so acquired;
(g) Indebtedness incurred pursuant to in clauses clause (1viii) through (13) aboveof Section 4.09; provided that such amendmentsencumbrance or restriction only relates to the Subsidiary or Permitted Joint Venture incurring such Indebtedness; and
(h) Refinancing Indebtedness, modifications, restatements, renewals, increases, supplements, refundings, replacements provided that such encumbrances or refinancings are, in the good faith judgment of the Company, restrictions are no more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased 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 advancesrefunded.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly (a) Directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than an Excluded Subsidiary) to:
(a) (i) pay dividends or make any other distributions on its Capital Stock to the Company Parent Borrower or any of its Restricted Subsidiaries (1) on its Capital Stock; other than Excluded Subsidiaries), or (2) with respect to any other interest or participation in, or measured by, its profits; , or (ii) pay any Indebtedness indebtedness owed to the Company Parent Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries);
(bii) make loans or advances to the Company Parent Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries); or
(ciii) sell, lease or transfer any of its properties or assets to the Company Parent Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries; except ).
(b) The restrictions in each case for such Section 6.05(a) above shall not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect this Agreement and other agreements governing Existing Indebtedness on the Existing First-Lien Issue Closing Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Senior Notes Documents, the Existing First-Lien Additional Senior Notes Indenture, Documents and any documents relating to the Existing First-Lien Notes, the indenture governing the Existing Senior Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3iii) applicable law or any applicable law, rule, regulation or order;
(4iv) 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 Section 6.05(a)(iii);
(vi) any agreement for the sale or other disposition of the stock or assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the sale or other disposition;
(vii) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness 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 under Section 6.02 and associated agreements that limit the right of the debtor to dispose of the assets subject to such Liens; US-DOCS\155682452.9 US-DOCS\155682452.9
(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 under contracts entered into in connection with a Permitted Business;
(xi) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or similar agreement to which the Parent Borrower or any Restricted Subsidiary is a party entered into in connection with a Permitted Business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Parent Borrower or such Restricted Subsidiary that are the subject of that agreement, the payment rights arising thereunder and/or the proceeds thereof and not to any other asset or property of the Parent Borrower or such Restricted Subsidiary or the assets or property of any other Restricted Subsidiary;
(xii) any instrument relating to governing Indebtedness or Capital Stock of a Person acquired by the Company Parent Borrower or any of its Restricted Subsidiary which was Subsidiaries as in existence effect at the time of such acquisition (but not created except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Agreement to be incurred;
(5xiii) contracts or agreements for the sale Indebtedness of assets, including any restriction with respect to a Restricted Subsidiary imposed 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 an agreement entered into for the sale or disposition of the Capital Stock or assets of which such Restricted Subsidiary pending became a Restricted Subsidiary or was acquired by the closing of such sale or dispositionParent Borrower;
(6xiv) Secured Indebtedness otherwise permitted with respect only to be Incurred pursuant Section 6.05(a)(iii), restrictions encumbering property at the time such property was acquired by the Parent Borrower or any of its Restricted Subsidiaries, so long as such restriction relates solely to Sections 4.03 the property so acquired and 4.12 that limit the right was not created in connection with or in anticipation of the debtor to dispose of the assets securing such Indebtednessacquisition;
(7xv) restrictions on cash provisions limiting the disposition or other deposits distribution of assets or net worth imposed by customers under contracts entered into property in agreements governing Non-Recourse Debt, which limitation is applicable only to the ordinary course assets that are the subject of businesssuch agreements;
(8) xvi) customary provisions restrictions created in joint venture agreements and other similar agreements entered into connection with any Permitted Securitization Indebtedness permitted under Section 6.01(b)(xxi) that, in the ordinary course good faith determination of business;a Responsible Officer of the Parent Borrower, are necessary or advisable to effect such Permitted Securitization Indebtedness; and
(9) 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, licenses and other similar 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;
(11xvii) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 (aSections 6.05(a)(i), (b6.05(a)(ii) and (c6.05(a)(iii) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1i) through (13xvi) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of a Financial Officer of the CompanyParent Borrower, no more restrictive with respect to such dividend and other US-DOCS\155682452.9 US-DOCS\155682452.9 payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewalrenewals, 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
Sources: Thirteenth Amendment to Second Amended and Restated Credit Agreement (NRG Energy, Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to and, in the case of clause (d) the Borrower or any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company Borrower or any of its Restricted Subsidiaries (1) on its Capital Stock; Equity Interests or (2) with respect to any other interest or participation in, or measured by, its profits; or (ii) pay any Indebtedness owed to the Company Borrower or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Borrower or any of its Restricted Subsidiaries; or
(c) sell, lease lease, transfer or transfer assign any of its properties or assets to the Company Borrower or any of its Restricted Subsidiaries; or
(d) create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Lenders with respect to the Facilities and the Obligations or under the Loan Documents; except in each case for such encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of the Borrower or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Closing Date, including pursuant to a Credit Agreement and the Senior Notes Indenture and, the other Senior Credit Documents and pursuant documents relating to the indentures governing Senior Notes Indenture and Permittedthe Second Lien Facility Documentation, and in any documents relating to any Second Lien Incremental Indebtedness and permitted Refinancings thereofof any of the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofforegoing;
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreementother Loan Documents, indentures, instruments or agreement governing any Additional Permitted Obligations, indentures, instruments or agreement governing any Permitted Debt Exchange Notes, indentures, instruments or agreements governing any Permitted Refinancing Obligations, indentures, instruments or agreements governing any Rollover Indebtedness, and indentures, instruments or agreements governing any RefinancingsRefinancing Indebtedness of each of the foregoing;
(3iii) applicable law or any applicable rule, regulation or order, or required by any regulatory authority having jurisdiction over the Borrower or any Restricted Subsidiary or any of their businesses;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Borrower or any Restricted Subsidiary which was in 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 acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock Equity Interests or assets of such Restricted Subsidiary pending the closing of such sale or disposition;Subsidiary; 173 Syniverse Credit Agreement
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits deposits, or net worth or inventory imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(8) vii) 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;
(9viii) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased Obligations entered into in the ordinary course of business that to the extent such obligations impose restrictions of the nature discussed type set forth in clause (c) above on the property so acquired;
(10ix) customary provisions contained in leases, licenses licenses, contracts and other similar agreements entered into in the ordinary course of business that to the extent such obligations impose restrictions of the type described set forth in clause (c) above on the property subject to such lease, license contract or other similar agreement;
(11x) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables SubsidiarySubsidiary;[reserved];
(12xi) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor Borrower that is Incurred subsequent to the Existing First-Lien Issue Closing Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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) above7.03; provided that such amendmentsencumbrances 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 or comply with the provisions of Section 6.12 (as determined by the Borrower in good faith);
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 7.03 and 7.01 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, modificationsnot relating to any Indebtedness, restatementsand that do not, renewalsindividually or in the aggregate, increases, supplements, refundings, replacements (x) detract from the value of the property or refinancings areassets of the Borrower or any Restricted Subsidiary in any manner material to the Borrower or the Restricted Subsidiary or (y) materially affect the Borrower’s ability to make future principal or interest payments on the Loans, in each case, as determined by the Borrower in good faith judgment faith;
(xiv) customary provisions in joint venture agreements and other similar agreements relating solely to the applicable joint venture; 174 Syniverse Credit Agreement (xv) existing under, by reason of the Company, no more restrictive or with respect to such dividend Refinancing Indebtedness; provided that the encumbrances and other payment restrictions contained in the agreements governing that Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the dividend or other payment restrictions prior to such amendmentagreements governing the Indebtedness being refinanced, 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 as determined by the Company or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.Borrower in good faith;
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (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 Company or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiaries, other than the Person or its subsidiaries, or the property or assets of the Person, so acquired;
(5v) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6vi) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) viii) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9ix) 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;
(10x) customary provisions contained in leases, licenses and other similar 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;
(11xi) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12xii) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03;
(13xiii) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(14xiv) 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 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 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 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
Sources: Indenture (Verso Paper Holdings LLC)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (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 Company or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1A) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement, the Existing Notes, the indentures governing the Existing Notes and the guarantees thereof;
(3B) (i) this Indenture and the Securities (and any Exchange Securities and guarantees thereof) and (ii) the New Fixed Rate Second Lien Notes Indenture and the New Fixed Rate Second Lien Notes (and any exchange notes and guarantees thereof) and any other Second Lien Note Document;
(C) applicable law or any applicable rule, regulation or order;
(4D) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or and its subsidiaries, or the property or assets of the PersonPerson and its subsidiaries, so acquired;
(5E) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6F) Secured secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 4B.03 and 4.12 4B.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7G) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) H) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9I) purchase money obligations or Capitalized Lease Obligations, in each case 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;
(10J) customary provisions contained in leases, licenses and other similar 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;
(11K) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12L) other Indebtedness, Disqualified Stock or Preferred Stock (i) of the Company or any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 4B.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.034B.03;
(13M) any Restricted Investment not prohibited by Section 4.04 and 4B.04 or any Permitted Investment; or
(14N) 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 (1A) through (13M) above; provided provided, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the CompanyIssuers, 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 4.054B.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
Sources: Indenture (Verso Paper Corp.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company Issuer or any of its Restricted Subsidiaries (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 Company Issuer or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a the Credit Agreements, the other Credit Agreement Documents, the Existing Second Priority Notes Indentures, the First Priority Notes Indenture, the Existing First Priority Notes Indenture and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofNotes;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees guarantees thereof) ), the Security Documents and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Issuer or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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 (cSection 4.05(c) above on the property so acquired;
(10) customary provisions contained in leases, licenses and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company Issuer (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted a Foreign Subsidiary of the Company that is not a Guarantor Issuer subsequent to the Existing First-Lien Issue Date pursuant to clause (iv), (xii) or (xx) of Section 4.034.03(b);
(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 the CompanyIssuer, 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) the subordination of loans or advances made to the Company Issuer or a Restricted Subsidiary of the Company Issuer to other Indebtedness Incurred by the Company 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 (Berry Plastics Corp)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (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 Company or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company or any of its Restricted Subsidiaries; or;
(c) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries; or
(d) in the case of Rexnord, make any payments with respect to the Securities; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a the Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofAgreement Documents;
(2) this Indenture, Indenture and the Securities (and guarantees thereof), the indentures governing the Existing 2014 Notes and the Existing 2014 Notes (and any Exchange Securities Existing 2014 Notes and Note Guarantees guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes), the indenture governing the Existing Secured Notes2016 Notes and the 2016 Notes (and any Exchange 2016 Notes and guarantees thereof), the Existing Secured Notes, and the indenture governing the New Second-Lien Notes, Existing Senior Subordinated Notes and the New Second-Lien Notes, the indenture governing the New Existing Senior Subordinated Notes, the New Notes (and any Exchange Existing Senior Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementNotes and guarantees thereof);
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased 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, licenses and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of (a) the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is a Guarantor or a Foreign Subsidiary of the Company or (b) of any Restricted Subsidiary that is not a Guarantor or a Foreign Subsidiary so long as such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Issuers’ ability to make anticipated principal or interest payments on the Securities (as determined in good faith by the Company), 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 Existing First-Lien Issue Date pursuant to by of 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 the CompanyIssuers, 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) 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
Sources: Indenture (RBS Global Inc)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company Issuers shall not, and shall not permit any of its their Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(other than Venetian) to (a) (i) pay dividends or make any other distributions to the Company Issuers or any of its their Restricted Subsidiaries (1A) on its their Capital Stock; Stock or (2B) with respect to any other interest or participation in, or measured by, its profits; , or (ii) pay any Indebtedness owed to the Company Issuers or any of its their Restricted Subsidiaries;
Subsidiaries (other than in respect of the subordination of such Indebtedness to the Mortgage Notes, the Mortgage Note Guaranties or any other Indebtedness incurred pursuant to the terms of this Indenture, as the case may be), (b) make loans or advances to the Company Issuers or any of its their Restricted Subsidiaries; or
Subsidiaries or (c) sell, lease lease, or transfer any of its their properties or assets to the Company Issuers or any of its their Restricted Subsidiaries; , except (in each case case) for such encumbrances or restrictions existing under or by reason of:
of (1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Issuance Date, including (2) the Bank Credit Facility (and any related security agreements), this Indenture, the Mortgage Notes, the Mall Construction Loan Facility (and any related security agreements), any Mortgage Note Guaranties, the Collateral Documents, indebtedness incurred pursuant to a Credit Agreement clause (g), (h), (j), (l), (n) or (o) of Section 4.09 hereof and any related security agreements, (3) the other Senior Credit Documents and pursuant to Subordinated Note Indenture, the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2) this IndentureSenior Subordinated Note Guaranties, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement instrument governing Indebtedness or other instrument relating to Indebtedness Capital Stock of a Person acquired by the Company or any Restricted Subsidiary which was as in existence effect at the time of such acquisition (but not created except to the extent such Indebtedness was incurred in connection with or in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
, provided that the Consolidated Cash Flow of such Person is not taken into account in determining whether such acquisition was permitted by the terms of this Indenture, (5) contracts or agreements for the sale by reason of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts customary non-assignment provisions in leases entered into in the ordinary course of business;
business and consistent with past practices and any leases permitted by Section 4.25, (8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(96) 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;
, (106) customary provisions contained in leases, licenses and other similar 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;
(11) applicable law or any encumbrance applicable rule or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock order of any Restricted Subsidiary of the Company Gaming Authority, (i7) that is Finance Co. Permitted Liens, (8) customary restrictions imposed by asset sale or a Guarantor that is Incurred subsequent stock purchase agreements relating to the Existing First-Lien Issue Date pursuant to Section 4.03 sale of assets or stock by the Issuers or any Restricted Subsidiary, or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03;
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(149) 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) 8) above; provided , 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. 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
Sources: Indenture (Grand Canal Shops Mall Construction LLC)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (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 Company or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the 2019 First-Lien Notes, Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Secured Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiaries, other than the Person or its subsidiaries, or the property or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 the Company, 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) 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
Sources: Indenture (Verso Paper Corp.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall (a) BP I and BP II will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(ai) (iA) pay dividends or make any other distributions to the Company BP I, BP II or any of its Restricted Subsidiaries (1) on its Capital Stock; Stock or (2) with respect to any other interest or participation in, or measured by, its profits; or (iiB) pay any Indebtedness owed to the Company BP I, BP II or any of its Restricted Subsidiaries;
(bii) make loans or advances to the Company BP I, BP II or any of its Restricted Subsidiaries; or
(ciii) sell, lease or transfer any of its properties or assets to the Company BP I, BP II or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a the Senior Secured Credit Agreement Facilities, Local Facilities, local overdraft and other local working capital facilities, the other Senior Credit Documents and pursuant to Notes Indenture, the indentures governing October 2010 Senior Secured Indenture, the Second-Lien NotesOctober 2010 Senior Indenture, the May 2010 Indenture, the 2009 Indenture, 2007 Senior Note Indenture, the 2007 Senior Subordinated Notes Indenture, and the guarantees thereof2007 Intercreditor Agreement, the October 2010 Security Documents, the 2009 Security Documents, the 2007 Notes Security Documents and the security documents with respect to the Senior Secured Credit Facilities and the Local Facilities;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Senior Secured Notes Indenture, the Existing First-Lien NotesSenior Secured Notes (and guarantees thereof), the indenture governing Security Documents and the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior First Lien Intercreditor Agreement, the First-Priority Intercreditor any Currency Agreement, the First-Lien any agreement or instrument creating a Hedging Obligation and any Additional Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementAgreements;;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company BP I, BP II or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or and its subsidiariesSubsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 any Restricted Investment not prohibited by Section 4.04 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtednessany Permitted Investment;
(7) restrictions on cash or other deposits or net worth imposed by regulatory authorities (including with respect to tax obligations and value-added taxes), in connection with deductions made for tax, pension, national insurance and other similar purposes or for the benefit of customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements, similar agreements relating solely to such joint venture and other similar agreements entered into in the ordinary course of business;
(9) Capitalized Lease Obligations and 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 acquiredbusiness;
(10) customary provisions contained in leases (other than financing or similar leases), licenses and other similar 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 leasebusiness;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock any encumbrance or Preferred Stock of restriction arising pursuant to an agreement or instrument relating to any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Indebtedness permitted to be Incurred subsequent to the Existing First-Lien Issue Date pursuant to by Section 4.03 (A) 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 Senior Secured Notes than the encumbrances and restrictions contained in the Senior Secured Credit Facilities as of the Issue Date (as determined in good faith by the Issuers) or (iiB) that if such encumbrance or restriction is Incurred by any Restricted Subsidiary not materially more disadvantageous to the holders of the Company Senior Secured Notes than is customary in comparable financings (as determined in good faith by the Issuers) and either (x) the Issuers determine that is such encumbrance or restriction will not materially affect the Issuers’ ability to make principal or interest payments on the Senior Secured Notes as and when they come due or (y) such encumbrance or restriction applies only if a Guarantor subsequent default occurs in respect of a payment or financial covenant relating to the Existing First-Lien Issue Date pursuant to Section 4.03such Indebtedness;
(13) any Restricted Investment not prohibited encumbrances or restrictions of the type referred to in clause (iii) of Section 4.05(a) above existing by reason of any Lien permitted under Section 4.04 and any Permitted Investment; or4.12;
(14) any encumbrances or restrictions of the type referred to in clauses (ai), (bii) and (ciii) of Section 4.05(a) 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 CompanyIssuers, 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 ; and
(15) restrictions on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course 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 advancesbusiness.
Appears in 1 contract
Sources: Senior Secured Notes Indenture (RenPac Holdings Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiaries (other than the Guarantors) to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Guarantors) to:
(a) (i) pay dividends or make any other distributions to the Company Issuer or any of its Restricted Subsidiaries (1) Guarantor 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 Company Issuer or any of its Restricted SubsidiariesGuarantor;
(b) make loans or advances to the Company Issuer or any of its Restricted SubsidiariesGuarantor; or
(c) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted SubsidiariesGuarantor; except in each case for such encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of the Issuer or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Date, including pursuant to a the Senior Credit Agreement and the other documents relating to the Senior Credit Documents Agreement, related Swap Contracts and Indebtedness permitted pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofSection 3.3(b)(iii);
(2ii) this Indenture, the Securities (Initial Notes and any Exchange Securities and Note the Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by or merged, amalgamated or consolidated with or into the Company Issuer or any Restricted Subsidiary or an Unrestricted Subsidiary that is designated a Restricted Subsidiary which was in existence at the time of such acquisition (but or at the time it merges, amalgamates or consolidates with or into the Issuer or any Restricted Subsidiary or is designated a Restricted Subsidiary) or assumed in connection with the acquisition of assets from such Person (but, in each case, not created in contemplation thereof or to provide all or any portion thereof); provided that for purposes of the funds or credit support utilized to consummate such acquisitionthis clause (iv), which encumbrance if a Person other than the Issuer or restriction such Restricted Subsidiary is not applicable to the Successor Company with respect thereto, any Subsidiary of such Person, or the properties any agreement or assets instrument of any such Person or its subsidiariesany such Subsidiary shall be deemed acquired or assumed, other than as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person or its subsidiaries, or the property or assets of the Person, so acquiredbecomes such Successor Company;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) vii) 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 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;
(9viii) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased Obligations entered into in the ordinary course of business that business, to the extent such obligations impose restrictions of the nature discussed in clause (cSection 3.6(c) above on the property so acquired;
(10ix) customary provisions contained in leases, licenses sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of business that to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, sub-lease, license, sublicense, contract or other similar agreement;
(11x) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified 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 such Receivables Subsidiary;
(12xi) other Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor Issuer that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 3.3; provided that (i) such encumbrances and restrictions contained in any agreement or instrument will not materially impair the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined by the Issuer in good faith) or (ii) that is 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 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 by 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 of the Company that is not a Guarantor subsequent in any manner material to the Existing First-Lien Issue Date pursuant Issuer or any Restricted Subsidiary or (y) do not materially impair the Issuer’s ability to Section 4.03make future principal or interest payments on the Notes, in each case under this clause (xiii), as determined by the Issuer in good faith;
(13xiv) any Restricted Investment not prohibited by Section 4.04 customary provisions in joint venture agreements or arrangements and any Permitted Investment; orother similar agreements or arrangements relating solely to the applicable joint venture;
(14xv) 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 of the type referred to in clauses (a), (b) and (c) above 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 (1i) through (13xv) aboveof this Section 3.6; provided that such amendmentsencumbrances and restrictions contained in any such amendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings refinancing are, in the good faith judgment of the CompanyIssuer, no not materially more restrictive with respect to such dividend restrictive, taken as a whole, than the encumbrances 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 4.053.6, (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 Company Issuer or a Restricted Subsidiary of the Company Issuer to other Indebtedness Incurred by the Company 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. The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company Borrower or any of its Restricted Subsidiaries (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 Company Borrower or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Borrower or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company Borrower or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Closing Date, including pursuant to a the Credit Agreement Agreements and the other Senior Credit Documents Documents, the Intelsat ▇▇▇▇▇▇▇ Unsecured Credit Agreement, documents and pursuant agreements relating to the indentures governing Specified Intercompany Agreements, the Second-Lien Existing Intelsat Notes, Senior Subordinated Notes the Existing Subsidiary Notes, the Intelsat Bermuda Loan and the guarantees thereofLockheed Note;
(2) this Agreement, the Loans, the Exchange Note Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture credit agreement governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated NotesSenior PIK Loans, the Senior Lien Intercreditor AgreementPIK Loans, the Firstexchange note indenture with respect to exchange notes for the Senior PIK Loans and such exchange notes, and any Take-Priority Intercreditor AgreementOut Securities (and, the First-Lien Intercreditor Agreementin each case, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreementguarantees thereof);
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Borrower or any Restricted Subsidiary which was in 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 acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 10.1 and 4.12 10.8 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into (including customary provisions in the ordinary course of businessagreements relating to any Joint Venture);
(9) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased 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, licenses licenses, contracts and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables FinancingFinancing that, in the good faith judgment of the Borrower, are necessary or advisable in connection therewith; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other agreements and instruments, including agreements and instruments governing Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor Borrower that is Incurred subsequent to the Existing First-Lien Issue Closing Date and permitted pursuant to Section 4.03 10.1; provided that either (A) the provisions relating to such encumbrance or restriction contained in 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, the Intelsat ▇▇▇▇▇▇▇ Unsecured Credit Agreement, the Intelsat Bermuda Loan or in an indenture or agreement governing the Existing Intelsat Notes, the Existing Subsidiary Notes, or the Loans in each case, as in effect on the Closing Date or (iiB) that is Incurred such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Borrower’s ability to make anticipated principal or interest payments on the Loans (as determined by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03Borrower in good faith);
(13) any Restricted Investment not prohibited by Section 4.04 10.2 and any Permitted Investment; orand
(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 the CompanyBorrower, no more restrictive as a whole with respect to such dividend encumbrances 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 4.05covenant, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock 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 Borrower or a Restricted Subsidiary of the Company Borrower to other Indebtedness Incurred by the Company Borrower or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Senior Unsecured Bridge Loan Credit Agreement (Intelsat LTD)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly (a) Directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual 122 US-DOCS\104110541.24 encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than an Excluded Subsidiary) to:
(a) (i) pay dividends or make any other distributions on its Capital Stock to the Company Borrower or any of its Restricted Subsidiaries (1) on its Capital Stock; other than Excluded Subsidiaries), or (2) with respect to any other interest or participation in, or measured by, its profits; , or (ii) pay any Indebtedness indebtedness owed to the Company Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries);
(bii) make loans or advances to the Company Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries; or);
(ciii) sell, lease or transfer any of its properties or assets to the Company Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries); except or
(iv) create, permit or ▇▇▇▇▇ ▇ ▇▇▇▇ on any of its properties or assets to secure the Guaranteed Obligations.
(b) The restrictions in each case for such Section 6.05(a) above shall not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect this Agreement and other agreements governing Existing Indebtedness on the Existing First-Lien Issue Closing Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Second Lien Notes Documents, documents evidencing Permitted Refinancing Indebtedness in respect of the Existing First-Second Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreementand documents evidencing other Indebtedness permitted to be incurred under Section 6.01;
(3iii) applicable law or any applicable law, rule, regulation or order;
(4iv) 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 Section 6.05(a)(iii);
(vi) any agreement for the sale or other disposition of the stock or assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the sale or other disposition;
(vii) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness 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 under Section 6.02 and associated agreements that limit the right of the debtor to dispose of the assets subject to such Liens; 123 US-DOCS\104110541.24
(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 under contracts entered into in connection with a Permitted Business;
(xi) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or similar agreement to which the Borrower or any Restricted Subsidiary is a party entered into in connection with a Permitted Business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are the subject of that agreement, the payment rights arising thereunder and/or the proceeds thereof and not to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of any other Restricted Subsidiary;
(xii) any instrument relating to governing Indebtedness or Capital Stock of a Person acquired by the Company Borrower or any of its Restricted Subsidiary which was Subsidiaries as in existence effect at the time of such acquisition (but not created except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Agreement to be incurred;
(5xiii) contracts or agreements for the sale Indebtedness of assets, including any restriction with respect to a Restricted Subsidiary imposed 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 an agreement entered into for the sale or disposition of the Capital Stock or assets of which such Restricted Subsidiary pending became a Restricted Subsidiary or was acquired by the closing of such sale or dispositionBorrower;
(6xiv) Secured Indebtedness otherwise permitted with respect only to be Incurred pursuant Section 6.05(a)(iii), restrictions encumbering property at the time such property was acquired by the Borrower or any of its Restricted Subsidiaries, so long as such restriction relates solely to Sections 4.03 the property so acquired and 4.12 that limit the right was not created in connection with or in anticipation of the debtor to dispose of the assets securing such Indebtednessacquisition;
(7xv) restrictions on cash provisions limiting the disposition or other deposits distribution of assets or net worth imposed by customers under contracts entered into property in agreements governing Non-Recourse Debt, which limitation is applicable only to the ordinary course assets that are the subject of businesssuch agreements;
(8) customary provisions in joint venture agreements xvi) the Tenaska Transaction Documents and other similar agreements entered into in the ordinary course of businessTenaska Energy Management Agreements;
(9xvii) purchase money obligations or Capitalized Lease Obligationsthe Shawville Pipeline Agreement, 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;Shawville Facility and ancillary documentation thereto; and 124 US-DOCS\104110541.24
(10) customary provisions contained in leases, licenses and other similar 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;
(11xviii) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 (aSections 6.05(a)(i), (b6.05(a)(ii) and (c6.05(a)(iii) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1i) through (13xvii) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of a Financial Officer of the CompanyBorrower, 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, renewalrenewals, 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
Sources: Revolving Credit Agreement
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (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 Company or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-First- Lien Issue Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiaries, other than the Person or its subsidiaries, or the property or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 the Company, 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) 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
Sources: Merger Agreement
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company Borrower and Starwood REIT shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) (i) pay dividends or make any other distributions to the Company Borrower or Starwood REIT or any of its Restricted Subsidiaries Subsidiary (1A) on its their Capital Stock; Stock or (2B) with respect to any other interest or participation in, or measured by, its profits; , or (ii) pay any Indebtedness owed to the Company Borrower, Starwood REIT or any Restricted Subsidiary (other than in respect of its Restricted Subsidiaries;
the subordination of such Indebtedness to the Senior Secured Notes, the Affiliate Guaranty or any other Indebtedness incurred pursuant to the terms of this Agreement, as the case may be), (b) make loans or advances to the Company Borrower, Starwood REIT or any of its Restricted Subsidiaries; or
Subsidiary or (c) sell, lease lease, or transfer any of its their properties or assets to the Company Borrower, Starwood REIT or any of its Restricted Subsidiaries; Subsidiary, except (in each case case) for such encumbrances or restrictions existing under or by reason of:
of (1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Original Closing Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2) this Indenture, the Securities Bank Credit Facility (and any Exchange Securities and Note Guarantees thereofrelated security agreements) and the Security Documentsany Guaranties thereof, this Agreement, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Senior Secured Notes, the Existing Secured NotesAffiliate Guaranty, the indenture governing the New Second-Lien Notesindebtedness incurred pursuant to clause (h) and (j) of Section 5.9 and any related security agreements, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes(3) this Agreement, the Senior Lien Intercreditor AgreementSecured Notes and the Affiliate Guaranty, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement instrument governing Indebtedness or other instrument relating to Indebtedness Capital Stock of a Person acquired by the Company Borrower, Starwood REIT or any Restricted Subsidiary which was as in existence effect at the time of such acquisition (but not created except to the extent such Indebtedness was incurred in connection with or in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
, (5) contracts or agreements for the sale by reason of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts customary non-assignment provisions in leases entered into in the 54 61 ordinary course of business;
, (8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(96) purchase money obligations or Capitalized Lease Obligations, in each case for property so acquired or leased in the ordinary course of business or secured indebtedness permitted to be incurred and secured hereby that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
acquired or which secures such indebtedness, (107) customary provisions contained in leases, licenses and other similar 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;
(11) applicable law or any encumbrance applicable rule or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock order of any Restricted Subsidiary of the Company Gaming Authority, (i) that is Finance Co. 8) customary restrictions imposed by asset sale or a Guarantor that is Incurred subsequent stock purchase agreements relating to the Existing First-Lien Issue Date pursuant to Section 4.03 sale of assets or (ii) that is Incurred stock by the Borrower, Starwood REIT or any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03;
Subsidiary, (13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; or
(149) 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) 8) above; provided , provided, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the CompanyBorrower and Starwood REIT, 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 , or (10) customary encumbrances or restrictions, pursuant to the terms of determining compliance with this Section 4.05, (i) the priority of any Preferred Stock in receiving permitted to be issued pursuant to Section 5.9, on the payment of 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 other 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 issuer of such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advancesPreferred Stock.
Appears in 1 contract
Sources: Senior Secured Note Agreement (Starwood Hotel & Resorts Worldwide Inc)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company Borrower or any of its Restricted Subsidiaries (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 Company Borrower or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Borrower or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company Borrower or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Closing Date, including pursuant to a the Credit Agreement Agreements and the other Senior Credit Documents and pursuant to Documents, the indentures governing Specified Intercompany Agreements, the Second-Lien Existing Intelsat Notes, Senior Subordinated the New Intelsat Bermuda Indebtedness, the Existing PanAmSat Notes and the guarantees thereofNew PanAmSat Indebtedness (including any exchange notes therefor);
(2) the Backstop Credit Facilities, this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) Agreement and the Security DocumentsLoans (and, the Existing First-Lien Notes Indenturein each case, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreementguarantees thereof);
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Borrower or any Restricted Subsidiary which was in 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 acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 10.1 and 4.12 10.8 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into (including customary provisions in the ordinary course of businessagreements relating to any Joint Venture);
(9) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased 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, licenses licenses, contracts and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables FinancingFinancing that, in the good faith judgment of the Borrower, are necessary or advisable in connection therewith; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other agreements and instruments, including agreements and instruments governing Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor Borrower that is Incurred subsequent to the Existing First-Lien Issue Closing Date and permitted pursuant to Section 4.03 10.1; provided that either (A) the provisions relating to such encumbrance or restriction contained in 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 the Existing PanAmSat Notes, in each case as in effect on the Issue Date or (ii) that is Incurred B)such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Borrower’s ability to make anticipated principal or interest payments on the Loans (as determined by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03Borrower in good faith);
(13) any Restricted Investment not prohibited by Section 4.04 10.2 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 the CompanyBorrower, no more restrictive as a whole with respect to such dividend encumbrances 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 4.05covenant, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock 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 Borrower or a Restricted Subsidiary of the Company Borrower to other Indebtedness Incurred by the Company 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. The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company Issuer or any of its Restricted Subsidiaries (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 Company Issuer or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect or entered into on the Existing First-Lien Issue DateDate or entered into in connection with the refinancing of the existing indebtedness of Intelsat J▇▇▇▇▇▇, including pursuant to a the Credit Agreement Agreements and the other Senior Credit Documents Documents, any Backstop Credit Facility, the Intelsat J▇▇▇▇▇▇ Unsecured Credit Agreement, documents and pursuant agreements relating to the indentures governing Specified Intercompany Agreements, the Second-Lien Existing Holdings Notes, Senior Subordinated Notes the Existing Subsidiary Notes, the Intelsat Bermuda Loan, the Lockheed Note and the guarantees thereofNew Intelsat J▇▇▇▇▇▇ Unsecured Credit Agreement;
(2) this Indenture, Indenture and the Securities Notes (and any Exchange Securities and Note Guarantees thereofNotes) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreementguarantees thereof;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Issuer or any Restricted Subsidiary which was in 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 acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into (including customary provisions in the ordinary course of businessagreements relating to any Joint Venture);
(9) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased 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, licenses licenses, contracts and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables FinancingFinancing that, in the good faith judgment of the Issuer, are necessary or advisable in connection therewith; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other agreements and instruments, including agreements and instruments governing Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor Issuer that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date and permitted pursuant to Section 4.03; provided that either (A) 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 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 in good faith);
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted Investment; orand
(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 the CompanyIssuer, no more restrictive as a whole with respect to such dividend encumbrances 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 4.05covenant, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock 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 Issuer or a Restricted Subsidiary of the Company Issuer to other Indebtedness Incurred by the Company 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 Company shall Issuer and Holdings I will not, and shall will not permit any of its their Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(ai) (i1) pay dividends or make any other distributions to the Company Issuer, Holdings I or any of its Restricted Subsidiaries (1A) on its Capital Stock; or (2B) with respect to any other interest or participation in, or measured by, its profits; or (ii2) pay any Indebtedness owed to the Company Issuer, Holdings I or any of its Restricted Subsidiaries;
(bii) make loans or advances to the Company Issuer, Holdings I or any of its Restricted Subsidiaries; or
(ciii) sell, lease or transfer any of its properties or assets to the Company Issuer, Holdings I or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a the Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofAgreement;
(2) (A) this Indenture, the Securities (and any Exchange Securities and Note Guarantees guarantees thereof) and ), the Security Documents, the Existing First-Lien Notes IndentureIntercreditor Agreement, the Existing First-Lien Notesany Currency Agreement, any agreement or instrument creating a Hedging Obligation and any Additional Intercreditor Agreements and (B) the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Senior Subordinated Notes, the New Subordinated Notes, Securities and the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementSubordinated Securities (and guarantees thereof);
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Issuer, Holdings I or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or and its subsidiariesSubsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 any Restricted Investment not prohibited by Section 4.04 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtednessany Permitted Investment;
(7) restrictions on cash or other deposits or net worth imposed by regulatory authorities (including with respect to tax obligations and value added taxes), in connection with deductions made for tax, pension, national insurance and other similar purposes or for the benefit of customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements, similar agreements relating solely to such joint venture and other similar agreements entered into in the ordinary course of business;
(9) Capitalized Lease Obligations and 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 acquiredbusiness;
(10) customary provisions contained in leases (other than financing or similar leases), licenses and other similar 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 leasebusiness;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock any encumbrance or Preferred Stock of restriction arising pursuant to an agreement or instrument relating to any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Indebtedness permitted to be Incurred subsequent to the Existing First-Lien Issue Date pursuant to under Section 4.03 (A) 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 Securities than the encumbrances and restrictions contained in the Credit Agreement as of the Issue Date (as determined in good faith by the Issuer) or (iiB) that if such encumbrance or restriction is Incurred by any Restricted Subsidiary not materially more disadvantageous to the Holders of the Company Securities than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines that is such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Securities and Holding I’s ability to make payments on the Proceeds Loans in each case as and when they come due or (y) such encumbrance or restriction applies only if a Guarantor subsequent default occurs in respect of a payment or financial covenant relating to the Existing First-Lien Issue Date pursuant to Section 4.03such Indebtedness;
(13) any Restricted Investment not prohibited encumbrances or restrictions of the type referred to in clause (iii) above existing by reason of any Lien permitted under Section 4.04 and any Permitted Investment; or4.12;
(14) any encumbrances or restrictions of the type referred to in clauses (ai), (bii) and (ciii) 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 CompanyIssuer, 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. ; or
(15) restrictions on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business.
(b) 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 ordinary shares shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of (or remedy bars in respect of) loans or advances made to the Company Issuer, Holdings I or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company Issuer, Holdings I 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. The Company shall Lux Co-Issuer will not, and shall will not permit any of its Restricted Subsidiaries (other than the U.S. Co-Issuer or the Guarantors) to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the U.S. Co-Issuer or the Guarantors) to:
(a) (i) pay dividends or make any other distributions to the Company Lux Co-Issuer or any of its Restricted Subsidiaries (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 Company Lux Co-Issuer or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Lux Co-Issuer or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company Lux Co-Issuer or any of its Restricted Subsidiaries; except in each case for such . However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of the Lux Co-Issuer or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Date, including pursuant to a the Senior Credit Agreement and the other documents relating to the Senior Credit Documents Agreement, related Swap Contracts, the Existing Indenture, the Existing Notes, the related guarantees and the other documents relating to the Existing Notes and Indebtedness permitted pursuant to clause (c) of the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofdefinition of “Permitted Debt”;
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing Guarantees and other documents relating to this Indenture and the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by or merged, amalgamated or consolidated with or into the Company Lux Co-Issuer or any Restricted Subsidiary which or an Unrestricted Subsidiary that is designated a Restricted Subsidiary that was in existence at the time of such acquisition (but or at the time it merges with or into the Lux Co-Issuer 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 or to provide all or any portion of the funds or credit support utilized to consummate such acquisitionthereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquiredacquired or designated; provided that in connection with a merger, amalgamation or consolidation under this clause (iv), if a Person other than the Lux Co-Issuer or such Restricted Subsidiary is the Successor Company with respect to such merger, amalgamation or consolidation, any agreement or instrument of such Person or any Subsidiary of such Person, shall be deemed acquired or assumed, as the case may be, by the Lux Co-Issuer or such Restricted Subsidiary, as the case may be, at the time of such merger, amalgamation or consolidation;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) vii) customary provisions in joint venture operating or other similar agreements, asset sale agreements and other similar stock sale agreements entered into in connection with the ordinary course entering into of businesssuch transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(9viii) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased in to the ordinary course of business that extent such obligations impose restrictions of the nature discussed in clause (c) above of this Section 3.6 on the property so acquired;
(10ix) customary provisions contained in leases, licenses subleases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of business that to the extent such obligations impose restrictions of the type described in clause (c) above of this Section 3.6 on the property subject to such lease;
(11x) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Factoring or Qualified Receivables Financing that, in the good faith determination of the Lux CoIssuer, is necessary or advisable to effect such Qualified Receivables Factoring or Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiaryas applicable;
(12xi) any encumbrance or restriction contained in other Indebtedness, Disqualified Stock or Preferred Stock of the Lux Co-Issuer or any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 3.3; provided that (i) such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Issuers’ ability to make anticipated principal or interest payments on the Notes (as determined by the Lux Co-Issuer or a direct or indirect parent of the Lux 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 this Indenture, the Existing Indenture or the Senior Credit Agreement as of the Issue Date (as determined by the Lux Co-Issuer in good faith);
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 3.3 and 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 is Incurred by do not, individually or in the aggregate, (x) detract from the value of the property or assets of the Lux Co-Issuer or any Restricted Subsidiary of the Company that is not a Guarantor subsequent in any manner material to the Existing FirstLux Co-Lien Issue Date pursuant Issuer or any Restricted Subsidiary or (y) materially affect the Issuers’ ability to Section 4.03make future principal or interest payments on the Notes, in each case, as determined by the Lux Co-Issuer in good faith;
(13xiv) any Restricted Investment not prohibited by Section 4.04 customary provisions in joint venture agreements or arrangements and any Permitted Investmentother similar agreements or arrangements relating solely to the applicable joint venture; orand
(14xv) 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 the immediately preceding clauses (1i) through (13) abovexiv); provided that such amendmentsencumbrances and restrictions contained in any such amendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings refinancing are, in the good faith judgment of the CompanyLux Co-Issuer, no not materially more restrictive with respect to such dividend restrictive, taken as a whole, than the encumbrances 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 4.053.6, (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 Company Lux Co-Issuer or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company Lux 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
Sources: Indenture (Ortho Clinical Diagnostics Holdings PLC)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall (a) BP I and BP II will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(ai) (iA) pay dividends or make any other distributions to the Company BP I, BP II or any of its Restricted Subsidiaries (1) on its Capital Stock; Stock or (2) with respect to any other interest or participation in, or measured by, its profits; or (iiB) pay any Indebtedness owed to the Company BP I, BP II or any of its Restricted Subsidiaries;
(bii) make loans or advances to the Company BP I, BP II or any of its Restricted Subsidiaries; or
(ciii) sell, lease or transfer any of its properties or assets to the Company BP I, BP II or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a the Senior Secured Credit Agreement Facilities, Local Facilities, local overdraft and other local working capital facilities, the Issuers’ Existing Indentures, the 2007 Senior Note Indenture, the 2007 Senior Subordinated Note Indenture, and the other Senior Credit 2007 UK Intercreditor Agreement, the August 2011 Security Documents, the February 2011 Security Documents, the October 2010 Security Documents, the 2009 Security Documents, the 2007 Notes Security Documents and pursuant the security documents with respect to the indentures governing the Second-Lien Notes, Senior Subordinated Notes Secured Credit Facilities and the guarantees thereofLocal Facilities;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Senior Secured Notes Indenture, the Existing First-Lien NotesSenior Secured Notes (and guarantees thereof), the indenture governing Security Documents and the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior First Lien Intercreditor Agreement, the First-Priority Intercreditor any Currency Agreement, the First-Lien any agreement or instrument creating a Hedging Obligation and any Additional Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementAgreements;;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company BP I, BP II or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or and its subsidiariesSubsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 any Restricted Investment not prohibited by Section 4.04 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtednessany Permitted Investment;
(7) restrictions on cash or other deposits or net worth imposed by regulatory authorities (including with respect to tax obligations and value-added taxes), in connection with deductions made for tax, pension, national insurance and other similar purposes or for the benefit of customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements, similar agreements relating solely to such joint venture and other similar agreements entered into in the ordinary course of business;
(9) Capitalized Lease Obligations and 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 acquiredbusiness;
(10) customary provisions contained in leases (other than financing or similar leases), licenses and other similar 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 leasebusiness;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock any encumbrance or Preferred Stock of restriction arising pursuant to an agreement or instrument relating to any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Indebtedness permitted to be Incurred subsequent to the Existing First-Lien Issue Date pursuant to by Section 4.03 (A) 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 Senior Secured Notes than the encumbrances and restrictions contained in the Senior Secured Credit Facilities as of the Issue Date (as determined in good faith by the Issuers) or (iiB) that if such encumbrance or restriction is Incurred by any Restricted Subsidiary not materially more disadvantageous to the holders of the Company Senior Secured Notes than is customary in comparable financings (as determined in good faith by the Issuers) and either (x) the Issuers determine that is such encumbrance or restriction will not materially affect the Issuers’ ability to make principal or interest payments on the Senior Secured Notes as and when they come due or (y) such encumbrance or restriction applies only if a Guarantor subsequent default occurs in respect of a payment or financial covenant relating to the Existing First-Lien Issue Date pursuant to Section 4.03such Indebtedness;
(13) any Restricted Investment not prohibited encumbrances or restrictions of the type referred to in clause (iii) of Section 4.05(a) above existing by reason of any Lien permitted under Section 4.04 and any Permitted Investment; or4.12;
(14) any encumbrances or restrictions of the type referred to in clauses (ai), (bii) and (ciii) of Section 4.05(a) 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 provided, however, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the CompanyIssuers, 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 ; and
(15) restrictions on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course 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 advancesbusiness.
Appears in 1 contract
Sources: Senior Secured Notes Indenture (Beverage Packaging Holdings (Luxembourg) v S.A.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company Borrower or any of its Restricted Subsidiaries (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 Company Borrower or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Borrower or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company Borrower or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Closing Date, including pursuant to a the Credit Agreement Agreements and the other Senior Credit Documents Documents, the Intelsat ▇▇▇▇▇▇▇ Unsecured Credit Agreement, documents and pursuant agreements relating to the indentures governing Specified Intercompany Agreements, the Second-Lien Existing Intelsat Notes, Senior Subordinated Notes the Existing Subsidiary Notes, the Intelsat Bermuda Loan and the guarantees thereofLockheed Note;
(2) this Agreement, the Loans, the Exchange Note Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture credit agreement governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated NotesSenior Bridge Loans, the Senior Lien Intercreditor AgreementBridge Loans, the Firstexchange note indenture with respect to exchange notes for the Senior Bridge Loans and such exchange notes, and any Take-Priority Intercreditor AgreementOut Securities (and, the First-Lien Intercreditor Agreementin each case, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreementguarantees thereof);
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Borrower or any Restricted Subsidiary which was in 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 acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 10.1 and 4.12 10.8 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into (including customary provisions in the ordinary course of businessagreements relating to any Joint Venture);
(9) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased 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, licenses licenses, contracts and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables FinancingFinancing that, in the good faith judgment of the Borrower, are necessary or advisable in connection therewith; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other agreements and instruments, including agreements and instruments governing Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor Borrower that is Incurred subsequent to the Existing First-Lien Issue Closing Date and permitted pursuant to Section 4.03 10.1; provided that either (A) the provisions relating to such encumbrance or restriction contained in 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, the Intelsat ▇▇▇▇▇▇▇ Unsecured Credit Agreement, the Intelsat Bermuda Loan or in an indenture or agreement governing the Existing Intelsat Notes, the Existing Subsidiary Notes, or the Loans in each case, as in effect on the Closing Date or (iiB) that is Incurred such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Borrower’s ability to make anticipated principal or interest payments on the Loans (as determined by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03Borrower in good faith);
(13) any Restricted Investment not prohibited by Section 4.04 10.2 and any Permitted Investment; orand
(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 the CompanyBorrower, no more restrictive as a whole with respect to such dividend encumbrances 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 4.05covenant, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock 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 Borrower or a Restricted Subsidiary of the Company Borrower to other Indebtedness Incurred by the Company Borrower or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Senior Unsecured Pik Election Bridge Loan Credit Agreement (Intelsat LTD)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to and, in the case of clause (d) the Borrower or any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company Borrower or any of its Restricted Subsidiaries (1) on its Capital Stock; Equity Interests or (2) with respect to any other interest or participation in, or measured by, its profits; or (ii) pay any Indebtedness owed to the Company Borrower or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Borrower or any of its Restricted Subsidiaries; or
(c) sell, lease lease, transfer or transfer assign any of its properties or assets to the Company Borrower or any of its Restricted Subsidiaries; or
(d) create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Lenders with respect to the Facilities and the Obligations or under the Loan Documents; except in each case for such encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of the Borrower or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Closing Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, other documents relating to the Senior Notes Indenture and the First Lien Intercreditor AgreementFacilities Documentation, and in any documents relating to any First Lien Incremental Indebtedness and permitted Refinancings of any of the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor foregoing;
(ii) this Agreement or any Other Intercreditor other Loan Documents, indentures, instruments or agreement governing any Additional Permitted Obligations, indentures, instruments or agreement governing any Permitted Debt Exchange Notes, indentures, instruments or agreements governing any Permitted Refinancing Obligations, indentures, instruments or agreements governing any Rollover Indebtedness, and indentures, instruments or agreements governing any Refinancing Indebtedness of each of the foregoing; 135 Syniverse Second Lien Credit Agreement;
(3iii) applicable law or any applicable rule, regulation or order, or required by any regulatory authority having jurisdiction over the Borrower or any Restricted Subsidiary or any of their businesses;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Borrower or any Restricted Subsidiary which was in 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 acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock Equity Interests or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6vi) restrictions on cash or other deposits, or net worth or inventory imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(vii) 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;
(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 type set forth in clause (c) above on the property so acquired;
(ix) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type set forth in clause (c) above on the property subject to such lease, license contract or other similar agreement;
(x) [reserved];
(xi) 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 or comply with the provisions of Section 6.12 (as determined by the Borrower in good faith);
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 7.03 and 4.12 that limit 7.01 to the extent limiting the right of the debtor to dispose of the assets securing such Indebtedness;
(7xiii) restrictions on cash any encumbrance or other deposits restriction arising or net worth imposed by customers under contracts entered into agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, (x) detract from the value of the property or assets of the Borrower or any Restricted Subsidiary in any manner material to the Borrower or the Restricted Subsidiary or (y) materially affect the Borrower’s ability to make future principal or interest payments on the Loans, in each case, as determined by the Borrower in good faith;
(8) xiv) customary provisions in joint venture agreements and other similar agreements entered into in relating solely to the ordinary course of businessapplicable joint venture;
(9xv) purchase money obligations existing under, by reason of or Capitalized Lease Obligations, in each case for property so acquired or leased with respect to Refinancing Indebtedness; provided that the encumbrances and restrictions contained in the ordinary course of business agreements governing that impose restrictions of Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the nature discussed agreements governing the Indebtedness being refinanced, as determined by the Borrower in clause (c) above on the property so acquiredgood faith;
(10xvi) applicable law or any applicable rule, regulation or order in any jurisdiction where Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be incurred pursuant to Section 7.03;
(xvii) customary provisions contained in leases, licenses and other similar agreements restricting assignment of any agreement entered into in the ordinary course of business that impose restrictions and not in circumvention of the type described in clause (c) above on the property subject to such leasethis provision;
(11xviii) customary net worth provisions contained in real property leases entered into by the Borrower and its Restricted Subsidiaries in the ordinary course of business, so long as the Borrower has determined in good faith that such net worth provisions would not reasonably be expected to impair the ability of the Borrower and its Restricted Subsidiaries to meet their ongoing obligations;
(xix) any encumbrance transfer of, agreement to transfer, option or restriction right with respect to, or Lien on, any property or assets of a Receivables the Borrower or any Restricted Subsidiary effected not otherwise prohibited by this Agreement;
(xx) customary provisions restricting dispositions of real property interests set forth in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(12xxi) other Indebtedness, Disqualified Stock or Preferred Stock of obligations under any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03Swap Contract entered into for bona fide hedging purposes;
(13xxii) any Restricted Investment not prohibited by Section 4.04 and any Permitted InvestmentCash Management Agreements; orand
(14xxiii) 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 (1i) through (13xxii) above; provided that any such amendmentsamendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings arerefinancing is, in the good faith judgment of the CompanyBorrower, no not more restrictive as a whole with respect to such dividend and other payment restrictions the applicable encumbrance or restriction than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. 137 Syniverse Second Lien Credit Agreement For purposes of determining compliance with this Section 4.057.07, (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 Equity Interests and (ii) the subordination of loans or advances made to the Company Borrower or a Restricted Subsidiary of the Company Borrower to other Indebtedness Incurred by the Company Borrower or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Syniverse Holdings Inc)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries (other than the Guarantors) to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Guarantors) to:
(aA) (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (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 Company or any of its Restricted Subsidiaries;
(bB) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(cC) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries; except in each case for such .
(b) However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of the Company or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Date, including pursuant to a the Senior Credit Agreement and the other documents relating to the Senior Credit Documents Agreement, related Swap Contracts, the Existing Convertible Indentures, the Existing Convertible Notes, the related guarantees and the other documents relating to the Existing Convertible Indentures and Indebtedness permitted pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes Section 3.3(b)(iii) and the guarantees thereofAmortizing Loan Kreditanstalt fur Wiederaufbau Program: KfW Energy Efficiency Program Energy-efficient Construction and Refurbishment (276), dated as of December 21, 2020, between Coherent LaserSystems GmbH & Co. KG and Commerzbank Aktiengesellschaft;
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security DocumentsNotes, the Existing First-Lien Notes Guarantees and other documents relating to this Indenture, the Existing First-Lien Notes, Notes and the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementGuarantees;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by or merged, amalgamated or consolidated with or into the Company or any Restricted Subsidiary which or an Unrestricted Subsidiary that is designated a Restricted Subsidiary that was in existence at the time of such acquisition (but or at the time it merges with or into the Company 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 or to provide all or any portion of the funds or credit support utilized to consummate such acquisitionthereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquiredacquired or designated; provided that in connection with a merger, amalgamation or consolidation under this clause (iv), if a Person other than the Company or such Restricted Subsidiary is the successor company with respect to such merger, amalgamation or consolidation, any agreement or instrument of such Person or any Subsidiary of such Person, shall be deemed acquired or assumed, as the case may be, by the Company or such Restricted Subsidiary, as the case may be, at the time of such merger, amalgamation or consolidation;
(5v) any encumbrances or restrictions contained in contracts or agreements for the sale sale, transfer, lease or other disposition of assetsassets applicable to such assets pending consummation of such sale, transfer, lease or other disposition, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) vii) customary provisions in (x) joint venture agreements or arrangements and other similar agreements or arrangements relating solely to the applicable joint venture and (y) operating or other similar agreements, asset sale agreements and stock sale agreements entered into in connection with the ordinary course entering into of businesssuch transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(9viii) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased in to the ordinary course of business that extent such obligations impose restrictions of the nature discussed in clause (c) above in the first paragraph of this Section 3.6 on the property so acquired;
(10ix) customary provisions contained in leases, licenses sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of business that to the extent such obligations impose restrictions of the type described in clause (c) above in the first paragraph of this Section 3.6 on the property subject to such lease;
(11x) customary provisions restricting subletting or assignment of any lease governing a leasehold interest;
(xi) customary provisions restricting assignment, mortgaging or hypothecation of any agreement entered into in the ordinary course of business;
(xii) customary net worth provisions contained in real property leases entered into by Subsidiaries, so long as the Company has determined in good faith that such net worth provisions would not reasonably be expected to impair the ability of the Company and its Subsidiaries to meet their ongoing obligations;
(xiii) restrictions in agreements representing Indebtedness, Disqualified Stock or Preferred Stock of any Non-Guarantor Subsidiaries that is incurred pursuant to Section 3.3 that apply only to such Non-Guarantor Subsidiary and its Subsidiaries that are Non-Guarantor Subsidiaries;
(xiv) Permitted Liens and customary restrictions and conditions contained in the document relating thereto, so long as (x) such restrictions or conditions relate only to the specific asset subject to such Lien, and (y) such restrictions and conditions are not created for the purpose of avoiding the restrictions imposed by this covenant;
(xv) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Factoring or a Qualified Receivables Financing (x) with respect to any Receivables Subsidiary or (y) that, in the good faith determination of the Company or any direct or indirect parent of the Company, is necessary or advisable to effect such Qualified Receivables Factoring or Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12xvi) any encumbrance or restriction contained in other Indebtedness, Disqualified Stock or Preferred Stock of the Company or any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 3.3; provided that such encumbrances and restrictions will not materially affect the Company’s ability to make anticipated principal or interest payments on the Notes (iias determined in good faith by the Company or any direct or indirect parent of the Company);
(xvii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 3.3 and 3.5 to the extent limiting the right of the debtor to dispose of the assets securing such Indebtedness;
(xviii) any encumbrance or restriction arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that is Incurred by does not, individually or in the aggregate, (x) detract from the value of the property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary or (y) materially affect the Company’s ability to make future principal or interest payments on the Notes, in each case, as determined in good faith by the Company or any direct or indirect parent of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03Company;
(13xix) any Restricted Investment encumbrance or restriction existing under, by reason or with respect to Refinancing Indebtedness; provided that such encumbrances and restrictions, taken as a whole, are not prohibited materially less favorable to the holders than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refinanced (as determined in good faith by Section 4.04 and the Company or any Permitted Investment; ordirect or indirect parent of the Company);
(14xx) [Reserved.]
(xxi) any encumbrances encumbrance or restrictions of restriction imposed by the type referred to in clauses Transaction Documents; and
(a), (bxxii) and (c) above any encumbrance or restriction imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in the immediately preceding clauses (1i) through (13xxi) aboveof this Section 3.6(b); provided that such amendmentsencumbrances and restrictions contained in any such amendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings refinancing are, in the good faith judgment of the Company or any direct or indirect parent of the Company, no not materially more restrictive with respect to such dividend restrictive, taken as a whole, than the encumbrances 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. .
(c) For purposes of determining compliance with this Section 4.053.6, (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 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
Sources: Indenture (Ii-Vi Inc)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) (ii)(a) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (1) on its Capital Stock; Stock or (2) with respect to any other interest or participation in, or measured by, its profits; , or (iib) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
, (bii) make loans or advances to the Company or any of its Restricted Subsidiaries; or
Subsidiaries or (ciii) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries; , except in each case for such encumbrances or restrictions existing under or by reason of:
of (a) the terms of any Indebtedness permitted by this Indenture to be incurred by any Subsidiary of the Company; provided, that, any such Indebtedness permits the payment of cash dividends to the Company in an amount sufficient to enable the Company to make payments of (A) interest required to be paid in respect of the Notes, (B) interest required to be paid in respect of the 1997 Notes, (C) interest required to be paid o the 1998 Notes and (D) after July 1, 2002, dividends required to be paid in respect of the Series A Preferred Stock and interest required to be paid in respect of the Notes, if issued, in each case, in accordance with the terms thereof (except during the continuance of a default or event of default under such other Indebtedness), (b) contractual encumbrances Existing Indebtedness or restrictions the PM&C Credit Facility, each as in effect on the Existing First-Lien Issue Closing Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2c) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security DocumentsNotes, the Existing First-Lien Notes Subsidiary Guarantees, the 1997 Indenture, the Existing First-Lien Notes1997 Notes and the 1997 Notes Subsidiary Guarantees, the indenture governing the Existing Secured Notes1998 Indenture, the Existing Secured Notes1998 Notes and the 1998 Notes Subsidiary Guarantees, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3d) applicable law or any applicable rulelaw, regulation or order;
(4e) any agreement instrument governing Indebtedness or other instrument relating to Indebtedness Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiary which was Subsidiaries as in existence effect at the time of such acquisition (but not created except to the extent such Indebtedness was incurred in connection with or in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or and its subsidiariesSubsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired;
, (5f) contracts or agreements for the sale by reason of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 customary non-assignment provisions in leases and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
business and consistent with past practices or (8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses and other similar 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;
(11g) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock agreement for the sale of any Restricted Subsidiary of the Company (i) or its assets that is Finance Co. or a Guarantor restricts distributions by that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 the Company, 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) 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 advancespending its sale.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall CommScope will not, and shall will not permit any of its Restricted Subsidiaries (other than the Issuer or the Guarantors) to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Issuer or the Guarantors) to:
(a) (i) pay dividends or make any other distributions to the Company CommScope or any of its Restricted Subsidiaries (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 Company CommScope or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company CommScope or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company CommScope or any of its Restricted Subsidiaries; except in each case for such . However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of CommScope or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Date, including pursuant to a the Senior Credit Agreement Agreements and the other documents relating to the Senior Credit Documents Agreements, related Swap Contracts and Indebtedness permitted pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofSection 3.3(b)(iii);
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture Guarantees and the indentures governing the Existing Secured Notes, Unsecured Notes and the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreementguarantees and other documents relating to such indentures;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or merged, amalgamated or consolidated with or into CommScope or any Restricted Subsidiary which or an Unrestricted Subsidiary that is designated a Restricted Subsidiary that was in existence at the time of such acquisition (but or at the time it merges with or into CommScope 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 or to provide all or any portion of the funds or credit support utilized to consummate such acquisitionthereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquiredacquired or designated; provided that in connection with a merger, amalgamation or consolidation under this clause (iv), if a Person other than CommScope or such Restricted Subsidiary is the successor company with respect to such merger, amalgamation or consolidation, any agreement or instrument of such Person or any Subsidiary of such Person, shall be deemed acquired or assumed, as the case may be, by CommScope or such Restricted Subsidiary, as the case may be, at the time of such merger, amalgamation or consolidation;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) vii) customary provisions in joint venture operating or other similar agreements, asset sale agreements and other similar stock sale agreements entered into in connection with the ordinary course entering into of businesssuch transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(9viii) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased in to the ordinary course of business that extent such obligations impose restrictions of the nature discussed in clause (c) above of the first paragraph of this Section 3.6 on the property so acquired;
(10ix) customary provisions contained in leases, licenses sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of business that to the extent such obligations impose restrictions of the type described in clause (c) above of the first paragraph of this Section 3.6 on the property subject to such lease;
(11x) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing that, in the good faith determination of CommScope, is necessary or advisable to effect such Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12xi) contractual encumbrances or restrictions contained in other Indebtedness, Disqualified Stock or Preferred Stock of CommScope or any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 3.3; provided that (i) such encumbrances and restrictions will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined by CommScope in good faith) or (ii) such encumbrances and restrictions, taken as a whole, are not materially less favorable to the Holders than the encumbrances and restrictions contained in this Indenture, the indentures governing the Existing Unsecured Notes or the Senior Credit Agreements (as determined by CommScope in good faith);
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 3.3 and 3.5 to the extent limiting the right of the debtor to dispose of the assets securing such Indebtedness;
(xiii) encumbrances or restrictions arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that is Incurred by do not, individually or in the aggregate, (x) detract from the value of the property or assets of CommScope or any Restricted Subsidiary of in any manner material to CommScope or any Restricted Subsidiary or (y) materially affect the Company that is not a Guarantor subsequent Issuer’s ability to make anticipated principal or interest payments on the Existing First-Lien Issue Date pursuant to Section 4.03Notes, in each case, as determined by CommScope in good faith;
(13xiv) any Restricted Investment not prohibited by Section 4.04 customary provisions in joint venture agreements or arrangements and any Permitted Investmentother similar agreements or arrangements relating solely to the applicable joint venture; orand
(14xv) any encumbrances or restrictions of the type referred to in clauses (a), (b) and or (c) above of the first paragraph 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 the immediately preceding clauses (1i) through (13xiv) aboveof the second paragraph of this Section 3.6; provided that such amendmentsencumbrances and restrictions contained in any such amendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings refinancing are, in the good faith judgment of CommScope, not materially more restrictive, taken as a whole, than the Company, no more restrictive with respect to such dividend encumbrances 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 4.053.6, (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 Company CommScope or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company CommScope 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 Company shall Issuer and Holdings I will not, and shall will not permit any of its their Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(ai) (i1) pay dividends or make any other distributions to the Company Issuer, Holdings I or any of its Restricted Subsidiaries (1A) on its Capital Stock; or (2B) with respect to any other interest or participation in, or measured by, its profits; or (ii2) pay any Indebtedness owed to the Company Issuer, Holdings I or any of its Restricted Subsidiaries;
(bii) make loans or advances to the Company Issuer, Holdings I or any of its Restricted Subsidiaries; or
(ciii) sell, lease or transfer any of its properties or assets to the Company Issuer, Holdings I or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a the Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofAgreement;
(2) (A) this Indenture, the Securities (and any Exchange Securities and Note Guarantees guarantees thereof) and ), the Security Documents, the Existing First-Lien Notes IndentureIntercreditor Agreement, the Existing First-Lien Notesany Currency Agreement, any agreement of instrument creating a Hedging Obligation and any Additional Intercreditor Agreements and (B) the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, Senior Securities and the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementSecurities (and guarantees thereof);
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Issuer, Holdings I or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or and its subsidiariesSubsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 any Restricted Investment not prohibited by Section 4.04 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtednessany Permitted Investment;
(7) restrictions on cash or other deposits or net worth imposed by regulatory authorities (including with respect to tax obligations and value added taxes), in connection with deductions made for tax, pension, national insurance and other similar purposes or for the benefit of customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements, similar agreements relating solely to such joint venture and other similar agreements entered into in the ordinary course of business;
(9) Capitalized Lease Obligations and 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 acquiredbusiness;
(10) customary provisions contained in leases (other than financing or similar leases), licenses and other similar 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 leasebusiness;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock any encumbrance or Preferred Stock of restriction arising pursuant to an agreement or instrument relating to any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Indebtedness permitted to be Incurred subsequent to the Existing First-Lien Issue Date pursuant to under Section 4.03 (A) 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 Securities than the encumbrances and restrictions contained in the Credit Agreement as of the Issue Date (as determined in good faith by the Issuer) or (iiB) that if such encumbrance or restriction is Incurred by any Restricted Subsidiary not materially more disadvantageous to the Holders of the Company Securities than is customary in comparable financings (as determined in good faith by the Issuer) and either (x) the Issuer determines that is such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Securities and Holding I’s ability to make payments on the Proceeds Loans in each case as and when they come due or (y) such encumbrance or restriction applies only if a Guarantor subsequent default occurs in respect of a payment or financial covenant relating to the Existing First-Lien Issue Date pursuant to Section 4.03such Indebtedness;
(13) any Restricted Investment not prohibited encumbrances or restrictions of the type referred to in clause (iii) above existing by reason of any Lien permitted under Section 4.04 and any Permitted Investment; or4.12;
(14) any encumbrances or restrictions of the type referred to in clauses (ai), (bii) and (ciii) 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 CompanyIssuer, 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. ; or
(15) restrictions on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business.
(b) 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 ordinary shares shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of (or remedy bars in respect of) loans or advances made to the Company Issuer, Holdings I or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company Issuer, Holdings I or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Senior Subordinated Notes Indenture (RenPac Holdings Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall Cadmus will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
of Cadmus to (a) (i) pay dividends or make any other distributions to the Company on or any in respect of its Restricted Subsidiaries (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 Company or any of its Restricted Subsidiaries;
(b) make loans or advances advances, or pay any Indebtedness or other obligation owed, to the Company Cadmus or any other Restricted Subsidiary of its Restricted SubsidiariesCadmus; or
or (c) sell, lease or transfer any of its properties property or assets to the Company Cadmus or any other Restricted Subsidiary of its Restricted Subsidiaries; Cadmus, except in each case for such encumbrances or restrictions existing under or by reason of:
: (1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
applicable law; (2) this Indenture, the Securities (and any Exchange Senior Subordinated Securities and Note Guarantees thereofthe Guarantor Guarantees; (3) and the Security Documents, the Existing First-Lien Notes Series A Indenture, the Existing First-Lien NotesSeries B Indenture, the indenture governing the Existing Secured NotesSeries A Securities, the Existing Secured Notes, Series B Securities and the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3) applicable law or any applicable rule, regulation or order;
Guarantor Guarantees; (4) customary non-assignment provisions of any agreement contract or other instrument relating to Indebtedness any lease governing a leasehold interest of a Person acquired by the Company or any Restricted Subsidiary which was in existence at the time of Cadmus; (5) any agreement governing Acquired Indebtedness, but only if 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), which encumbrance or restriction is shall not applicable apply to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
required; (56) contracts agreements existing on the Issue Date, to the extent and in the manner such agreements are in effect on the Issue Date; (7) the Credit Agreement; (8) any instrument governing a Permitted Lien, to the extent and only to the extent such instrument restricts the transfer or agreements other disposition of assets subject to such Permitted Lien; (9) any contract for the sale of specified assets, including including, without limitation, any restriction with respect to a Restricted Subsidiary of Cadmus imposed pursuant to an any agreement entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary Subsidiary, to be consummated in accordance with the terms of this Indenture, pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted ; PROVIDED that any such restriction relates solely to be Incurred pursuant to Sections 4.03 and 4.12 the Capital Stock or assets that limit are the right subject of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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;
agreement; (10) customary provisions contained in leases, licenses and Indebtedness or other similar 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;
(11) any encumbrance or restriction contractual requirements of a Receivables Subsidiary effected Securitization Entity in connection with a Qualified Receivables FinancingSecuritization Transaction or the charter documents of such Securitization Entity; providedPROVIDED that, howeverin any case, that such restrictions apply only to such Receivables Subsidiary;
Securitization Entity; and (1211) other Indebtednessany agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, Disqualified Stock assumed or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 an agreement referred to in clauses clause (a2), (b4), (5) or (6) above; PROVIDED, HOWEVER, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are not materially more restrictive, as determined by the Board of Directors of Cadmus or such Restricted Subsidiary, as the case may be, in their reasonable and (c) above imposed by any amendmentsgood faith judgment, modifications, restatements, renewals, increases, supplements, refundings, replacements than the provisions relating to such encumbrance or refinancings of the contracts, instruments or obligations restriction contained in agreements referred to in clauses such clause (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 Company, 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 4.052), (i4), (5) 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 advances6).
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on which prohibits or limits the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company Borrower or any of its Restricted Subsidiaries Subsidiary (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 Company or any of its Restricted Subsidiaries;or
(b) make loans or advances to the Company Borrower or any Restricted Subsidiary that is a direct or indirect parent of its such Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted SubsidiariesSubsidiary; except in each case for such encumbrances or restrictions existing under or by reason of:
(1i) (i) contractual encumbrances or restrictions in effect on the Existing FirstClosing Date (including encumbrances or restrictions imposed on Con-Lien Issue Date, including way and any Subsidiary thereof which is a Restricted Subsidiary) and (ii) contractual encumbrances or restrictions pursuant to a this Agreement, the other Loan Documents, the ABL Credit Agreement (and all guarantee, security and other documents relating thereto), the other Senior Con-way BridgeBilateral Credit Documents and pursuant to the indentures governing the Second-Lien NotesAgreement and, Senior Subordinated Notes and the guarantees thereofin each case, similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2ii) this Indenture, (x) the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien 20192023 Notes Indenture, the Existing First-Lien 20192023 Notes or the guarantees thereunder and, (y) the 2021/20222024 Notes Indenture, the 20212024 Notes, the indenture governing 2022 or the Existing Secured Notesguarantees thereunder or (z) the 2025 Notes Indenture, the Existing Secured Notes, 2025 Notes or the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreementguarantees thereunder;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Borrower or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or and its subsidiariesSubsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired;
(5v) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6vi) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 Section 7.1 and 4.12 Section 7.7 that limit limits the right of the debtor to dispose of the assets securing such Indebtedness;
(7vii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) viii) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9ix) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquiredbusiness;
(10x) customary provisions contained in leases, licenses and other similar 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 leasebusiness;
(11xi) 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 limitationslimitation, licenses of intellectual property) or other contracts;
(xii) any encumbrance or restriction of a Receivables Securitization Subsidiary effected in connection with a Qualified Receivables Securitization Financing; provided, however, that such restrictions apply only to such Receivables Securitization Subsidiary;
(12xiii) other Indebtedness, Disqualified Stock or Preferred Stock (a) of Borrower or any Restricted Subsidiary that is a Guarantor or a Foreign Subsidiary or (b) of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor or a Foreign Subsidiary so long as such encumbrances and restrictions contained in any agreement or instrument will not materially affect Borrower’s or any Guarantor’s ability to make anticipated principal or interest payments on the Loans (as determined in good faith by Borrower), 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 Existing First-Lien Issue Closing Date pursuant to Section 4.037.1;
(13xiv) any Restricted Investment not prohibited by Section 4.04 7.2 and any Permitted Investment; or
(14xv) any encumbrances or restrictions of the type referred to in clauses (a), Section 7.3(a) or (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 (1i) through (13xiv) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the CompanyBorrower, 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, .; or
(ixvi) 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 advancesSpin Transactions.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall (a) BP I and BP II will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(ai) (iA) pay dividends or make any other distributions to the Company BP I, BP II or any of its Restricted Subsidiaries (1) on its Capital Stock; Stock or (2) with respect to any other interest or participation in, or measured by, its profits; or (iiB) pay any Indebtedness owed to the Company BP I, BP II or any of its Restricted Subsidiaries;
(bii) make loans or advances to the Company BP I, BP II or any of its Restricted Subsidiaries; or
(ciii) sell, lease or transfer any of its properties or assets to the Company BP I, BP II or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a the Senior Secured Credit Agreement Facilities, Local Facilities, local overdraft and other local working capital facilities, the other Senior Credit Documents and pursuant to Secured Notes Indenture, the indentures governing October 2010 Senior Indenture, the Second-Lien NotesOctober 2010 Senior Secured Indenture, the May 2010 Indenture, the 2009 Indenture, the 2007 Senior Notes Indenture, the 2007 Senior Subordinated Notes Indenture, the 2007 Intercreditor Agreement, the First Lien Intercreditor Agreement, the Senior Secured Notes Security Documents, the October 2010 Security Documents, the 2009 Security Documents, the 2007 Notes Security Documents and the guarantees thereofsecurity documents with respect to the Senior Secured Credit Facilities and the Local Facilities;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Senior Notes Indenture, the Existing First-Lien NotesSenior Notes (and Senior Note Guarantees thereof), the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor any Currency Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement any agreement or instrument creating a Hedging Obligation and any Other Intercreditor Agreementother intercreditor agreements;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company BP I, BP II or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or and its subsidiariesSubsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 any Restricted Investment not prohibited by Section 4.04 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtednessany Permitted Investment;
(7) restrictions on cash or other deposits or net worth imposed by regulatory authorities (including with respect to tax obligations and value-added taxes), in connection with deductions made for tax, pension, national insurance and other similar purposes or for the benefit of customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements, similar agreements relating solely to such joint venture and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 the Company, 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) 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. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (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 Company or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company or any of its Restricted Subsidiaries; or;
(c) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries; or
(d) in the case of Rexnord, make any payments with respect to the Securities; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a the Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofAgreement Documents;
(2) this Indenture, Indenture and the Securities (and any Exchange Securities and Note Guarantees guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes), the indenture governing the Existing Secured Notes, 2014 Notes and the Existing Secured Notes2014 Notes (and any Exchange Existing 2014 Notes and guarantees thereof), the indenture governing the New Second-Lien Notes2016 Notes and the 2016 Notes (and any Exchange 2016 Notes and guarantees thereof), the New Second-Lien Notes, and the indenture governing the New Existing Senior Subordinated Notes, Notes and the New Existing Senior Subordinated Notes, the Notes (and any Exchange Existing Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementSubordinated Notes and guarantees thereof);
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Closing Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted a Foreign Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Closing Date pursuant to clause (iv), (xii) or (xx) of Section 4.034.03(b);
(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 the CompanyIssuers, 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) 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
Sources: Indenture (RBS Global Inc)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly (a) Directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than an Excluded Subsidiary) to:
(a) (i) pay dividends or make any other distributions on its Capital Stock to the Company Parent Borrower or any of its Restricted Subsidiaries (1) on its Capital Stock; other than Excluded Subsidiaries), or (2) with respect to any other interest or participation in, or measured by, its profits; , or (ii) pay any Indebtedness indebtedness owed to the Company Parent Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries);
(bii) make loans or advances to the Company Parent Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries); or
(ciii) sell, lease or transfer any of its properties or assets to the Company Parent Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries; except ).
(b) The restrictions in each case for such Section 6.05(a) above shall not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect this Agreement and other agreements governing Existing Indebtedness on the Existing First-Lien Issue Closing Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Senior Notes Documents, the Existing First-Lien Additional Senior Notes Indenture, Documents and any documents relating to the Existing First-Lien Notes, the indenture governing the Existing Senior Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3iii) applicable law or any applicable law, rule, regulation or order;
(4iv) 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 Section 6.05(a)(iii);
(vi) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiaries, other than the Person or its subsidiaries, or the property or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or other disposition of the Capital Stock stock or assets of such a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the closing of such sale or other disposition;
(6vii) 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 4.03 incurred under Section 6.02 and 4.12 associated agreements that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses and other similar 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 leaseLiens;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 the Company, 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) 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
Sources: Credit Agreement (NRG Energy, Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary of the Company to:
: (a) (i) pay dividends or make any other distributions to the Company on, or any of its Restricted Subsidiaries (1) on in respect of, 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 Company or any of its Restricted Subsidiaries;
(b) make loans or advances or pay any Indebtedness or other obligation owed to the Company or any of its Restricted SubsidiariesGuarantor; or
or (c) sell, lease or transfer any of its properties property or assets to the Company or any of its Restricted Subsidiaries; except in each case Guarantor, except, with respect to clauses (a), (b) and (c), for such encumbrances or restrictions existing under or by reason of:
: (1) contractual encumbrances applicable law, rule, regulation or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
order; (2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes IndentureIntercreditor Agreement, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes (including the Senior Secured Debt Documents related to the Existing Secured Notes), the 2027 5.50% Notes, the indenture governing the New Second-Lien 2027 7.50% Notes, the New Second-Lien 2029 4.625% Notes, the indenture governing 2029 4.875% Notes and the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
guarantees in respect thereof; (3) applicable law non-assignment provisions of any contract or any applicable rule, regulation or order;
lease of any Restricted Subsidiary of the Company entered into in the ordinary course of business; (4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or any Restricted Subsidiary which was in 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)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiaries, or the property properties or assets of the Person, Person so acquired;
; (5) contracts the Credit Facilities as entered into or agreements for existing on the sale of assetsIssue Date or any amendments, including modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that any restriction restrictions imposed pursuant to any such amendment, modification; restatement, renewal, increase, supplement, refunding, replacement or refinancing are ordinary and customary with respect to a Restricted Subsidiary syndicated bank loans (under the relevant circumstances); (6) agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date; (7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed pursuant by the holder of such Lien; (8) restrictions imposed by any agreement to an agreement entered into for the sale sell assets or disposition of the Capital Stock or assets of such Restricted Subsidiary permitted under this Indenture to any Person pending the closing of such sale sale; (9) any agreement or disposition;
instrument governing Capital Stock of any Person that is acquired; (610) Secured any Purchase Money Note or other Indebtedness otherwise or other contractual requirements of a Securitization Entity in connection with a Qualified Securitization Transaction; provided that such restrictions apply only to such Securitization Entity; (11) other Indebtedness or Permitted Subsidiary Preferred Stock outstanding on the Issue Date or permitted to be Incurred pursuant issued or incurred under this Indenture; provided that any such restrictions are ordinary and customary with respect to Sections 4.03 and 4.12 that limit the right type of Indebtedness being incurred or Preferred Stock being issued (under the debtor to dispose of the assets securing such Indebtedness;
relevant circumstances); (712) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 (134) and (6) 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’s Board of Directors (evidenced by a Board Resolution) whose judgment shall be conclusively binding, no 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; (14) customary provisions in joint venture, (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 partnership, asset sale, sale leaseback and other similar agreements; and (ii15) customary provisions in leases and other agreements entered into in the subordination ordinary course 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 advancesbusiness.
Appears in 1 contract
Sources: Indenture (TransDigm Group INC)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on which prohibits or limits the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company Borrower or any of its Restricted Subsidiaries Subsidiary (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 Company or any of its Restricted Subsidiaries;or
(b) make loans or advances to the Company Borrower or any Restricted Subsidiary that is a direct or indirect parent of its such Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted SubsidiariesSubsidiary; except in each case for such encumbrances or restrictions existing under or by reason of:
(1i) (i) contractual encumbrances or restrictions in effect on the Existing FirstAmendment No. 8 Closing Date (including encumbrances or restrictions imposed on Con-Lien Issue Date, including way and any Subsidiary thereof which is a Restricted Subsidiary) and (ii) contractual encumbrances or restrictions pursuant to a this Agreement, the other Loan Documents, the ABLRevolving Credit Agreement (and all guarantee, security and other documents relating thereto), the other Senior Bilateral Credit Documents and pursuant to the indentures governing the Second-Lien NotesAgreement and, Senior Subordinated Notes and the guarantees thereofin each case, similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2ii) this Indenture, (x) the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien 2023 Notes Indenture, the Existing First-Lien Notes2023 Notes or the guarantees thereunder, (y) the 2024 Notes Indenture, the indenture governing 2024 Notes or the Existing Secured Notesguarantees thereunder or (z) the 2025 Notes Indenture, the Existing Secured Notes, 2025 NotesSenior Notes Documents or the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreementguarantees thereunder;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Borrower or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or and its subsidiariesSubsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired;
(5v) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6vi) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 Section 7.1 and 4.12 Section 7.7 that limit limits the right of the debtor to dispose of the assets securing such Indebtedness;
(7vii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) viii) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9ix) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased Obligations in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquiredbusiness;
(10x) customary provisions contained in leases, licenses and other similar 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 leasebusiness;
(11xi) 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 other contracts;
(xii) any encumbrance or restriction of a Receivables Securitization Subsidiary effected in connection with a Qualified Receivables Securitization Financing; provided, however, that such restrictions apply only to such Receivables Securitization Subsidiary;
(12xiii) other Indebtedness, Disqualified Stock or Preferred Stock (a) of Borrower or any Restricted Subsidiary that is a Guarantor or a Foreign Subsidiary or (b) of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor or a Foreign Subsidiary so long as such encumbrances and restrictions contained in any agreement or instrument will not materially affect Borrower’s or any Guarantor’s ability to make anticipated principal or interest payments on the Loans (as determined in good faith by B▇▇▇▇▇▇▇), 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 Existing First-Lien Issue Closing Date pursuant to Section 4.037.1;
(13xiv) any Restricted Investment not prohibited by Section 4.04 7.2 and any Permitted Investment; or;
(14xv) any encumbrances or restrictions of the type referred to in clauses (a), Section 7.3(a) or (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 (1i) through (13xiv) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the CompanyB▇▇▇▇▇▇▇, 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; or
(xvi) the Spin Transactions. For purposes of determining compliance with this Section 4.057.3, (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 Borrower or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company Borrower or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Sources: Refinancing Amendment (XPO, Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to and, in the case of clause (d), the Borrower or any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company Borrower or any of its Restricted Subsidiaries (1) on its Capital Stock; Equity Interests or (2) with respect to any other interest or participation in, or measured by, its profits; or (ii) pay any Indebtedness owed to the Company Borrower or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Borrower or any of its Restricted Subsidiaries; or
(c) sell, lease lease, transfer or transfer assign any of its properties or assets to the Company Borrower or any of its Restricted Subsidiaries;
(d) create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Lenders with respect to the Facilities and the Obligations or under the Loan Documents; except in each case for such encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of the Borrower or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue FundingRelease Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Senior Notes Indenture, the Existing First-Lien NotesCredit Agreement, the indenture governing other Loan Documents (as defined in the Existing Secured NotesCredit Agreement) and the other documents relating to the Existing Senior Notes Indenture, the Existing Secured NotesCredit Agreement and other Loan Documents (as defined in the Existing Credit Agreement), the indenture governing Backstop Agreement and the New Second-Lien Notesother documents relating to the Backstop Agreement and, the New Second-Lien Notesin each case, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Permitted Refinancings thereof;
(ii) this Agreement or any Other Intercreditor Agreementother Loan Documents, indentures, instruments or agreement governing any Additional Permitted Obligations, indentures, instruments or agreement governing any Permitted Debt Exchange Notes, indentures, instruments or agreements governing any Permitted Refinancing Obligations and indentures, instruments or agreements governing any Refinancings Indebtedness of each of the foregoing;
(3iii) applicable law or any applicable rule, regulation or order, or required by any regulatory authority having jurisdiction over the Borrower or any Restricted Subsidiary or any of their businesses;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Borrower or any Restricted Subsidiary which was in 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 acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock Equity Interests or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits deposits, or net worth or inventory imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(8) vii) 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;
(9viii) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased Obligations entered into in the ordinary course of business that to the extent such obligations impose restrictions of the nature discussed type set forth in clause (c) above on the property so acquired;
(10ix) customary provisions contained in leases, licenses licenses, contracts and other similar agreements entered into in the ordinary course of business that to the extent such obligations impose restrictions of the type described set forth in clause (c) above on the property subject to such lease, license contract or other similar agreement;
(11x) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12xi) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor Borrower that is Incurred subsequent to the Existing First-Lien Issue FundingRelease Date pursuant to Section 4.03 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 or comply with the provisions of Section 6.12 (iias determined by the Borrower in good faith);
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 7.03 and 7.01 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 is Incurred by do not, individually or in the aggregate, (x) detract from the value of the property or assets of the Borrower or any Restricted Subsidiary of the Company that is not a Guarantor subsequent in any manner material to the Existing First-Lien Issue Date Borrower or the Restricted Subsidiary or (y) materially affect the Borrower’s ability to make future principal or interest payments on the Loans, in each case, as determined by the Borrower in good faith;
(xiv) customary provisions in joint venture agreements and other similar agreements 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 not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined by the Borrower in good faith;
(xvi) applicable law or any applicable rule, regulation or order in any jurisdiction where Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be incurred pursuant to Section 4.037.03;
(13xvii) customary provisions restricting assignment of any agreement entered into in the ordinary course of business and not in circumvention of this provision;
(xviii) customary net worth provisions contained in real property leases entered into by the Borrower and its Restricted Subsidiaries in the ordinary course of business, so long as the Borrower has determined in good faith that such net worth provisions would not reasonably be expected to impair the ability of the Borrower and its Restricted Subsidiaries to meet their ongoing obligations;
(xix) any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower or any Restricted Investment Subsidiary not otherwise prohibited by Section 4.04 and any Permitted Investment; orthis Agreement;
(14xx) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
(xxi) obligations under any Swap Contract entered into for bona fide hedging purposes;
(xxii) Cash Management Agreements; and
(xxiii) 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 (1i) through (13xxii) above; provided that any such amendmentsamendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings arerefinancing is, in the good faith judgment of the CompanyBorrower, no not more restrictive as a whole with respect to such dividend and other payment restrictions the applicable encumbrance or restriction 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 4.057.07, (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 Equity Interests and (ii) the subordination of loans or advances made to the Company Borrower or a Restricted Subsidiary of the Company Borrower to other Indebtedness Incurred by the Company 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. The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company Issuer or any of its Restricted Subsidiaries (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 Company Issuer or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue DateDate or entered into in connection with the refinancing of the Floating Rate Senior Notes due 2012 of Intelsat Subholdco, including pursuant to a the Credit Agreement Agreements and the other Senior Credit Documents Documents, the New Intelsat Bermuda Unsecured Credit Agreement, the Intelsat Bermuda Facility, documents and pursuant agreements relating to the indentures governing Specified Intercompany Agreements, the Second-Lien Existing Intelsat Notes, Senior Subordinated the Existing Subsidiary Notes (including any exchange notes therefor), the Intelsat Bermuda Intercompany Loan, the Existing PanAmSat Acquisition Notes (including any exchange notes therefor) and the guarantees thereofLockheed Note;
(2) this Indenture, Indenture and the Securities Notes (and any Exchange Securities Notes and Note Guarantees guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement);
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Issuer or any Restricted Subsidiary which was in 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 acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into (including customary provisions in the ordinary course of businessagreements relating to any Joint Venture);
(9) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased 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, licenses licenses, contracts and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables FinancingFinancing that, in the good faith judgment of the Issuer, are necessary or advisable in connection therewith; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other agreements and instruments, including agreements and instruments governing Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor Issuer that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date and permitted pursuant to Section 4.03; provided that either (A) 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, the New Intelsat Bermuda Unsecured Credit Agreement, or in an indenture governing the Existing Intelsat Notes, the Existing Subsidiary Notes, the Intelsat Bermuda Intercompany Loan, the Existing PanAmSat Acquisition Notes or the Notes, in each case, as in effect on the Issue Date or entered into in connection with the refinancing of the Floating Rate Senior Notes due 2012 of Intelsat Subholdco or (B) 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 in good faith);
(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 the CompanyIssuer, no more restrictive as a whole with respect to such dividend encumbrances 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 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 Issuer or a Restricted Subsidiary of the Company Issuer to other Indebtedness Incurred by the Company 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 Company Issuer shall not, and shall not permit any of its the Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) (iA) pay dividends or make any other distributions to the Company Issuer or any of its the Restricted Subsidiaries (1i) on its Capital Stock; Stock or (2ii) with respect to any other interest or participation in, or measured by, its profits; or (iiB) pay any Indebtedness owed to the Company Issuer or any of its the Restricted Subsidiaries;
(b2) make loans or advances to the Company Issuer or any of its the Restricted Subsidiaries; or
(c3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its the Restricted Subsidiaries; except in each case for such .
(b) Section 4.08(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a the Credit Agreement and the other Senior Credit Documents Agreement Documents, the Existing First Lien Notes Indenture, the Existing First Lien Notes and pursuant the guarantees thereof, the collateral documents and intercreditor agreements related to the indentures governing the Second-Existing First Lien Notes, the Existing First Lien Junior Notes Indentures, the Existing First Lien Junior Notes and the guarantees thereof, the collateral documents and intercreditor agreements related to the Existing First Lien Junior Notes, the Existing Senior Subordinated Unsecured Notes Indentures, the Existing Senior Unsecured Notes and the guarantees thereof;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) Notes and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementNote Guarantees;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Issuer or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesSubsidiaries, or the property or assets of the PersonPerson or its Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 4.09 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits (including escrowed funds) or net worth imposed by customers 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) purchase money obligations or and 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 (c3) of Section 4.08(a) above on the property so acquiredacquired or leased;
(10) customary provisions contained in leases, licenses and other similar agreements entered into in the ordinary course of business that impose restrictions of the type described in clause (c3) of Section 4.08(a) above on the property subject to such lease;
(11) any encumbrance or restriction on a Special Purpose Securitization Subsidiary that, in the good faith judgment of a Receivables Subsidiary effected senior management or the Board of Directors of the Issuer, is reasonably required in connection with a Qualified Receivables Financingtherewith; provided, however, that such restrictions apply only to such Receivables SubsidiarySpecial Purpose Securitization Subsidiaries;
(12) other Indebtedness, Indebtedness or Disqualified Stock of the Issuer or any of its Restricted Subsidiaries or Preferred Stock of any Restricted Non-Guarantor Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date and permitted pursuant to Section 4.03 4.09; provided that 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 (ii) that is Incurred as determined in good faith by any Restricted Subsidiary senior management or the Board of Directors of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03;
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted InvestmentIssuer); or
(1413) any encumbrances or restrictions of the type referred to in clauses (a1), (b2) and (c3) above 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 (1312) aboveof this Section 4.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of senior management or the CompanyBoard of Directors of the Issuer, no more restrictive with respect to such dividend encumbrances and other payment restrictions taken as a whole than those contained in the dividend encumbrances or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. .
(c) For purposes of determining compliance with this Section 4.054.08, (i1) 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 (ii2) the subordination of loans or advances made to the Company Issuer or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company 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 (Realogy Group LLC)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly (a) Directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than an Excluded Subsidiary) to:
(a) (i) pay dividends or make any other distributions on its Capital Stock to the Company Parent Borrower or any of its Restricted Subsidiaries (1) on its Capital Stock; other than Excluded Subsidiaries), or (2) with respect to any other interest or participation in, or measured by, its profits; , or (ii) pay any Indebtedness indebtedness owed to the Company Parent Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries);
(bii) make loans or advances to the Company Parent Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries); or
(ciii) sell, lease or transfer any of its properties or assets to the Company Parent Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries; except ).
(a) The restrictions in each case for such Section 6.05(a) above shall not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions in effect this Agreement and other agreements governing Existing Indebtedness on the Existing First-Lien Issue Closing Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Senior Notes Documents, the Existing First-Lien Additional Senior Notes Indenture, Documents and any documents relating to the Existing First-Lien Notes, the indenture governing the Existing Senior Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3iii) applicable law or any applicable law, rule, regulation or order;
(4iv) 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 Section 6.05(a)(iii);
(vi) any agreement for the sale or other disposition of the stock or assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the sale or other disposition;
(vii) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness 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 under Section 6.02 and associated agreements that limit the right of the debtor to dispose of the assets subject to such Liens;
(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; 139 US-DOCS\159452469.6
(x) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in connection with a Permitted Business;
(xi) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or similar agreement to which the Parent Borrower or any Restricted Subsidiary is a party entered into in connection with a Permitted Business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Parent Borrower or such Restricted Subsidiary that are the subject of that agreement, the payment rights arising thereunder and/or the proceeds thereof and not to any other asset or property of the Parent Borrower or such Restricted Subsidiary or the assets or property of any other Restricted Subsidiary;
(xii) any instrument relating to governing Indebtedness or Capital Stock of a Person acquired by the Company Parent Borrower or any of its Restricted Subsidiary which was Subsidiaries as in existence effect at the time of such acquisition (but not created except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Agreement to be incurred;
(5xiii) contracts or agreements for the sale Indebtedness of assets, including any restriction with respect to a Restricted Subsidiary imposed 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 an agreement entered into for the sale or disposition of the Capital Stock or assets of which such Restricted Subsidiary pending became a Restricted Subsidiary or was acquired by the closing of such sale or dispositionParent Borrower;
(6xiv) Secured Indebtedness otherwise permitted with respect only to be Incurred pursuant Section 6.05(a)(iii), restrictions encumbering property at the time such property was acquired by the Parent Borrower or any of its Restricted Subsidiaries, so long as such restriction relates solely to Sections 4.03 the property so acquired and 4.12 that limit the right was not created in connection with or in anticipation of the debtor to dispose of the assets securing such Indebtednessacquisition;
(7xv) restrictions on cash provisions limiting the disposition or other deposits distribution of assets or net worth imposed by customers under contracts entered into property in agreements governing Non-Recourse Debt, which limitation is applicable only to the ordinary course assets that are the subject of businesssuch agreements;
(8) xvi) customary provisions restrictions created in joint venture agreements and other similar agreements entered into connection with any Permitted Securitization Indebtedness permitted under Section 6.01(b)(xxi) that, in the ordinary course good faith determination of business;a Responsible Officer of the Parent Borrower, are necessary or advisable to effect such Permitted Securitization Indebtedness; and
(9) 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, licenses and other similar 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;
(11xvii) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 (aSections 6.05(a)(i), (b6.05(a)(ii) and (c6.05(a)(iii) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1i) through (13xvi) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of a Financial Officer of the CompanyParent Borrower, 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, renewalrenewals, 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
Sources: Credit Agreement (NRG Energy, Inc.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries (other than the Subsidiary Guarantors) to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Subsidiary Guarantors) to:
(a) (i) pay dividends or make any other distributions to the Company Issuer or any of its Restricted Subsidiaries (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 Company Issuer or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries; except in each case for such . However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of the Issuer or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Date, including pursuant to a the Senior Credit Agreement Agreements and the other documents relating to the Senior Credit Documents Agreements, related Swap Contracts and Indebtedness permitted pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofclause (iii) of Section 3.3(b);
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Notes, the Guarantees thereof) and the Security Documents, the Existing First-Lien Unsecured Notes Indenture, the Existing First-Lien Notes, Opco Notes Indentures and the indenture governing the Existing Secured Holdco Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by or merged, amalgamated or consolidated with or into the Company Issuer or any Restricted Subsidiary which or an Unrestricted Subsidiary that is designated a Restricted Subsidiary that was in existence at the time of such acquisition (but or at the time it merges with or into the Issuer 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 or to provide all or any portion of the funds or credit support utilized to consummate such acquisitionthereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquiredacquired or designated; provided that in connection with a merger, amalgamation or consolidation under this clause (iv), if a Person other than the Issuer or such Restricted Subsidiary is the successor company with respect to such merger, amalgamation or consolidation, any agreement or instrument of such Person or any Subsidiary of such Person, shall be deemed acquired or assumed, as the case may be, by the Issuer or such Restricted Subsidiary, as the case may be, at the time of such merger, amalgamation or consolidation;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) vii) customary provisions in joint venture operating or other similar agreements, asset sale agreements and other similar 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;
(9) purchase money , to the extent such 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 of the first paragraph of this Section 3.6 on the property so acquired;
(10ix) customary provisions contained in leases, licenses sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of business that to the extent such obligations impose restrictions of the type described in clause (c) above of the first paragraph of this Section 3.6 on the property subject to such lease;
(11x) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing that, in the good faith determination of the Issuer, are necessary or advisable to effect such Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12xi) other Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 3.3; provided that (i) 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 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 this Indenture, the Unsecured Notes Indenture, the Opco Notes Indentures or the Senior Credit Agreements (as determined by the Issuer in good faith);
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 3.3 and 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 is Incurred by do not, individually or in the aggregate, (x) detract from the value of the property or assets of the Issuer or any Restricted Subsidiary of the Company that is not a Guarantor subsequent in any manner material to the Existing First-Lien Issue Date pursuant Issuer or any Restricted Subsidiary or (y) materially affect the Issuer’s ability to Section 4.03make future principal or interest payments on the Notes, in each case, as determined by the Issuer in good faith;
(13xiv) any Restricted Investment not prohibited by Section 4.04 customary provisions in joint venture agreements or arrangements and any Permitted Investmentother similar agreements or arrangements relating solely to the applicable joint venture; orand
(14xv) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above of the first paragraph 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 the immediately preceding clauses (1i) through (13) abovexiv); provided that such amendmentsencumbrances and restrictions contained in any such amendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings refinancing are, in the good faith judgment of the CompanyIssuer, no not materially more restrictive with respect to such dividend restrictive, taken as a whole, than the encumbrances 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 4.053.6, (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 Company Issuer or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company 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. The Company (a) Neither the Borrower nor Holdings shall, nor shall not, and shall not either permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions on its Equity Interests to the Company Borrower or any of its Restricted Subsidiaries (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 Company Borrower or any of its Restricted Subsidiaries;
(bii) make loans or advances to the Company Borrower or any of its Restricted Subsidiaries; or;
(ciii) sell, lease or transfer any of its properties or assets to the Company Borrower or any of its Restricted Subsidiaries; except or
(iv) guarantee any Indebtedness of the Borrower or any of its Subsidiaries;
(b) Notwithstanding the foregoing, the restrictions in each case for such the preceding clause (a) shall not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions Existing Indebtedness and the Second Lien Credit Agreement, in each case as in effect on the Closing Date and, with respect to any such Indebtedness other than the Existing First-Lien Issue Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien 10% Notes, Senior Subordinated Notes any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, 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 dividend and other payment restrictions than those contained in the guarantees thereofagreements governing such Existing Indebtedness or the Second Lien Credit Agreement, as the case may be, as in effect on the Closing Date;
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Loan Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3iii) applicable law or any applicable rule, regulation or orderlaw;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiaries, other than the Person or its subsidiaries, or the property or assets of the Person, so acquired[Reserved];
(5v) customary non-assignment provisions in leases or contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement real property mortgages or related documents entered into for in the sale or disposition ordinary course of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionbusiness and consistent with past practices;
(6vi) Secured purchase money obligations, Capital Lease Obligations or mortgage financings that impose restrictions on the property so acquired of the nature described in clause (a)(iii) hereto;
(vii) [Reserved];
(viii) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(ix) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets securing subject to such IndebtednessLien;
(7x) 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; and
(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 the Company, 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) 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
Sources: Credit Agreement (Xm Investment LLC)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiaries (other than the Guarantors) to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Guarantors) to:
(a) (i) pay dividends or make any other distributions to the Company Issuer or any of its Restricted Subsidiaries (1) Guarantor 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 Company Issuer or any of its Restricted SubsidiariesGuarantor;
(b) make loans or advances to the Company Issuer or any of its Restricted SubsidiariesGuarantor; or
(c) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted SubsidiariesGuarantor; except in each case for such encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of the Issuer or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Date, including pursuant to a the Senior Credit Agreement and the other documents relating to the Senior Credit Documents Agreement, related Swap Contracts and Indebtedness permitted pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofSection 3.3(b)(iii);
(2ii) this Indenture, the Securities (Initial Notes and any Exchange Securities and Note the Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by or merged, amalgamated or consolidated with or into the Company Issuer or any Restricted Subsidiary or an Unrestricted Subsidiary that is designated a Restricted Subsidiary which was in existence at the time of such acquisition (but or at the time it merges, amalgamates or consolidates with or into the Issuer or any Restricted Subsidiary or is designated a Restricted Subsidiary) or assumed in connection with the acquisition of assets from such Person (but, in each case, not created in contemplation thereof or to provide all or any portion thereof); provided that for purposes of the funds or credit support utilized to consummate such acquisitionthis clause (iv), which encumbrance if a Person other than the Issuer or restriction such Restricted Subsidiary is not applicable to the Successor Company with respect thereto, any Subsidiary of such Person, or the properties any agreement or assets instrument of any such Person or its subsidiariesany such Subsidiary shall be deemed acquired or assumed, other than as the case may be, by the Issuer or a Restricted Subsidiary, as the case may be, when such Person or its subsidiaries, or the property or assets of the Person, so acquiredbecomes such Successor Company;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) vii) 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 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;
(9viii) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased Obligations entered into in the ordinary course of business that business, to the extent such obligations impose restrictions of the nature discussed in clause (cSection 3.6(c) above on the property so acquired;
(10ix) customary provisions contained in leases, licenses sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of business that to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease, sub-lease, license, sublicense, contract or other similar agreement;
(11x) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing that, in the good faith determination of the Issuer, are necessary or advisable to effect such Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12xi) other Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor Issuer that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 3.3; provided that (i) such encumbrances and restrictions contained in any agreement or instrument will not materially impair the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined by the Issuer in good faith) or (ii) that is 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 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 by 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 of the Company that is not a Guarantor subsequent in any manner material to the Existing First-Lien Issue Date pursuant Issuer or any Restricted Subsidiary or (y) do not materially impair the Issuer’s ability to Section 4.03make future principal or interest payments on the Notes, in each case under this clause (xiii), as determined by the Issuer in good faith;
(13xiv) any Restricted Investment not prohibited by Section 4.04 customary provisions in joint venture agreements or arrangements and any Permitted Investment; orother similar agreements or arrangements relating solely to the applicable joint venture;
(14xv) 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 of the type referred to in clauses (a), (b) and (c) above 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 (1i) through (13xv) aboveof this Section 3.6; provided that such amendmentsencumbrances and restrictions contained in any such amendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings refinancing are, in the good faith judgment of the CompanyIssuer, no not materially more restrictive with respect to such dividend restrictive, taken as a whole, than the encumbrances 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 4.053.6, (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 Company Issuer or a Restricted Subsidiary of the Company Issuer to other Indebtedness Incurred by the Company 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. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
to (a) (ii)(a) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (1) on its Capital Stock; Stock or (2) with respect to any other interest or participation in, or measured by, its profits; , or (iib) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
, (bii) make loans or advances to the Company or any of its Restricted Subsidiaries; or
Subsidiaries or (ciii) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries; , except in each case for such encumbrances or restrictions existing under or by reason of:
of (a) the terms of any Indebtedness permitted by this Indenture to be incurred by any Subsidiary of the Company; provided, that, any such Indebtedness permits the payment of cash dividends to the Company in an amount sufficient to enable the Company to make payments of (A) interest required to be paid in respect of the 1997 Notes, the 1998 Notes, the 1999 Notes, the 2001 Senior Notes and the 2001 Senior Subordinated Notes and (B) after July 1, 2002, dividends required to be paid in respect of the Series A Preferred Stock and Series B Preferred Stock and interest required to be paid in respect of the Notes, if issued, in each case, in accordance with the terms thereof (except during the continuance of a default or event of default under such other Indebtedness), (b) contractual encumbrances Existing Indebtedness or restrictions the PM&C Credit Facility, each as in effect on the Existing First-Lien Issue Closing Date, including pursuant to a Credit Agreement (c) this Indenture, the Notes, the Subsidiary Guarantees, the 1997 Indenture, the 1997 Notes and the other Senior Credit Documents and pursuant to 1997 Notes Subsidiary Guarantees, the indentures governing 1998 Indenture, the Second-Lien 1998 Notes, the 1998 Notes Subsidiary Guarantees, the 1999 Indenture, the 1999 Notes, the 1999 Notes Subsidiary Guarantees, the 2001 Senior Indenture, the 2001 Senior Notes, the 2001 Senior Notes Subsidiary Guarantees, the 2001 Senior Subordinated Indenture, the 2001 Senior Subordinated Notes and the guarantees thereof;
2001 Senior Subordinated Notes Subsidiary Guarantees; (2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3d) applicable law or any applicable rulelaw, regulation or order;
(4e) any agreement instrument governing Indebtedness or other instrument relating to Indebtedness Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiary which was Subsidiaries as in existence effect at the time of such acquisition (but not created except to the extent such Indebtedness was incurred in connection with or in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or and its subsidiariesSubsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired;
, (5f) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 customary non-assignment provisions in leases and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
business and consistent with past practices or (8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses and other similar 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;
(11g) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock agreement for the sale of any Restricted Subsidiary of the Company (i) or its assets that is Finance Co. or a Guarantor restricts distributions by that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 the Company, 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) 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 advancespending its sale.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company (a) Subject to provisions of Section 4.11(b) below, the Parent Guarantor shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions on its Equity Interests to the Company Parent Guarantor or any of its other Restricted Subsidiaries (1) on its Capital Stock; or (2) with respect to any other interest or participation in, or measured by, its profits; or Subsidiary;
(ii) pay any Indebtedness Debt owed to the Company Parent Guarantor or any of its other Restricted SubsidiariesSubsidiary;
(biii) make loans or advances to the Company Parent Guarantor or any of its other Restricted SubsidiariesSubsidiary; or
(civ) sell, lease or transfer any of its properties property or assets to the Company Parent Guarantor or any other Restricted Subsidiary.
(b) The restrictions contained in Section 5.11(a) 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 its Restricted Subsidiariesany of the foregoing; except provided that the encumbrances and restrictions in each case for such 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 being amended, modified, restated, extended, renewed, replaced or refinanced;
(ii) existing pursuant to the Indenture, the Notes, the Note Guaranty or the other Note Documents;
(iii) existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Dateof applicable law, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3) applicable law or any applicable rule, regulation or order;
(4iv) existing under any agreements or other instruments of, or with respect to:
(A) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiaries, other than the Person or its subsidiaries, or the property or assets of the any Person, so acquiredat the time the Person is acquired by the Parent Guarantor or any Restricted Subsidiary, or
(B) any Unrestricted Subsidiary at the time it is designated or is deemed to 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 Holders of the Notes than the encumbrances or restrictions being amended, modified, restated, extended, renewed, replaced or refinanced;
(5v) contracts of the type described in Section 4.11(a)(iv) arising or agreements for agreed to (1) in the sale ordinary course of assetsbusiness 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, (2) 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 (3) by virtue of any restriction Lien on, or agreement to transfer, option or similar right with respect to any property or assets of, the Parent Guarantor or any Restricted Subsidiary;
(vi) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of the Capital Stock of, or property and assets of such of, the Restricted Subsidiary pending the closing of such sale or dispositiondisposition that is permitted hereunder;
(6vii) Secured Indebtedness otherwise permitted to be Incurred consisting of customary restrictions pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtednessany Permitted Receivables Financing;
(7viii) 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 under contracts entered into customers, suppliers or required by insurance surety bonding companies, in each case, in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9x) existing pursuant to purchase money obligations or Capitalized Lease Obligations, in each case for property so acquired or leased in the ordinary course of business and Capital Leases or operating leases or Specified Coal Agreements or Mining Leases that impose encumbrances or restrictions of the nature discussed noted in clause (cSection 4.11(a)(iv) above on the property so acquiredacquired or covered thereby;
(10xi) existing pursuant to any Debt Incurred by, or other agreement of, a Foreign Subsidiary, which encumbrances or restrictions are customary provisions contained in leases, licenses and other similar agreements entered into in the ordinary course for a financing or agreement of business that impose restrictions of the type described in clause (c) above on the property subject to such leasetype;
(11xii) any encumbrance existing pursuant to customary provisions in joint venture, operating or restriction of a Receivables Subsidiary effected similar agreements, asset sale agreements and stock sale agreements required in connection with a Qualified Receivables Financingthe entering into of such transaction; provided, however, that such restrictions apply only to such Receivables Subsidiary;or
(12xiii) other Indebtedness, Disqualified Stock existing pursuant to any agreement or Preferred Stock of instrument relating to any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Debt permitted to be Incurred subsequent to the Existing First-Lien Issue Date pursuant by Section 4.09 (A) if the encumbrances and restrictions contained in any such agreement or instrument are, taken as a whole, no less favorable in any material respect to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary the Holders of the Company that is not a Guarantor subsequent to Notes than the Existing First-Lien Issue Date pursuant to Section 4.03;
(13) any Restricted Investment not prohibited by Section 4.04 encumbrances 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 the Company, no more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend Credit Agreement in effect as of the Issue Date (as determined in good faith by the Parent Guarantor) or other payment (B) such encumbrances and restrictions prior 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 Parent Guarantor), and the Parent Guarantor determines in good faith that such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.05, (i) encumbrances and restrictions will not materially affect 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 Company’s ability to make distributions on Capital Stock and (ii) the subordination of loans principal 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 interest payments on the ability to make loans or advancesNotes as and when they become due.
Appears in 1 contract
Sources: Indenture (Antelope Coal LLC)
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall (a) BP I and BP II will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(ai) (iA) pay dividends or make any other distributions to the Company BP I, BP II or any of its Restricted Subsidiaries (1) on its Capital Stock; Stock or (2) with respect to any other interest or participation in, or measured by, its profits; or (iiB) pay any Indebtedness owed to the Company BP I, BP II or any of its Restricted Subsidiaries;
(bii) make loans or advances to the Company BP I, BP II or any of its Restricted Subsidiaries; or
(ciii) sell, lease or transfer any of its properties or assets to the Company BP I, BP II or any of its Restricted Subsidiaries; except in each case for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a the Senior Secured Credit Agreement Facilities, Local Facilities, local overdraft and other local working capital facilities, the August 2011 Senior Indenture, the August 2011 Senior Secured Indenture, the February 2011 Senior Secured Indenture, the February 2011 Senior Indenture, the October 2010 Senior Secured Indenture, the October 2010 Senior Indenture, the May 2010 Indenture, the 2009 Indenture, 2007 Senior Note Indenture, the 2007 Senior Subordinated Note Indenture, and the other Senior Credit 2007 UK Intercreditor Agreement, the First Lien Intercreditor Agreement, the August 2011 Security Documents, the February 2011 Security Documents, the October 2010 Security Documents, the 2009 Security Documents, the 2007 Notes Security Documents and pursuant the security documents with respect to the indentures governing the Second-Lien Notes, Senior Subordinated Notes Secured Credit Facilities and the guarantees thereofLocal Facilities;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Senior Notes Indenture, the Existing First-Lien NotesSenior Notes (and guarantees thereof), the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor any Currency Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement any agreement or instrument creating a Hedging Obligation and any Other Intercreditor Agreementintercreditor agreements;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company BP I, BP II or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or and its subsidiariesSubsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 any Restricted Investment not prohibited by Section 4.04 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtednessany Permitted Investment;
(7) restrictions on cash or other deposits or net worth imposed by regulatory authorities (including with respect to tax obligations and value-added taxes), in connection with deductions made for tax, pension, national insurance and other similar purposes or for the benefit of customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements, similar agreements relating solely to such joint venture and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 the Company, 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) 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
Sources: Senior Notes Indenture (Beverage Packaging Holdings (Luxembourg) IV S.a r.l.)
Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiaries (other than the Subsidiary Guarantors) to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Subsidiary Guarantors) to:
(aA) (i) pay dividends or make any other distributions to the Company Issuer or any of its Restricted Subsidiaries (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 Company Issuer or any of its Restricted Subsidiaries;
(bB) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries; or
(cC) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries; except in each case for such .
(b) However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of the Issuer or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Date, including pursuant to a the Senior Credit Agreement Agreements and the other documents relating to the Senior Credit Documents Agreements, related Swap Contracts, the Existing Indentures, the Existing Notes, the related guarantees and the other documents relating to the Existing Indentures and Indebtedness permitted pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofSection 3.3(b)(iii);
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and Notes, the Guarantees, the Security Documents, the Existing First-Lien Notes Intercreditor Agreements and other documents relating to this Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured NotesGuarantees, the Existing Secured Notes, Security Documents and the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementAgreements;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by or merged, amalgamated or consolidated with or into the Company Issuer or any Restricted Subsidiary which or an Unrestricted Subsidiary that is designated a Restricted Subsidiary that was in existence at the time of such acquisition (but or at the time it merges with or into the Issuer 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 or to provide all or any portion of the funds or credit support utilized to consummate such acquisitionthereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquiredacquired or designated; provided that in connection with a merger, amalgamation or consolidation under this clause (iv), if a Person other than the Issuer or such Restricted Subsidiary is the successor company with respect to such merger, amalgamation or consolidation, any agreement or instrument of such Person or any Subsidiary of such Person, shall be deemed acquired or assumed, as the case may be, by the Issuer or such Restricted Subsidiary, as the case may be, at the time of such merger, amalgamation or consolidation;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) vii) customary provisions in (x) joint venture agreements or arrangements and other similar agreements or arrangements relating solely to the applicable joint venture and (y) operating or other similar agreements, asset sale agreements and stock sale agreements entered into in connection with the ordinary course entering into of businesssuch transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(9viii) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased in to the ordinary course of business that extent such obligations impose restrictions of the nature discussed in clause (c) above in the first paragraph of this Section 3.6 on the property so acquired;
(10ix) customary provisions contained in leases, licenses sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of business that to the extent such obligations impose restrictions of the type described in clause (c) above in the first paragraph of this Section 3.6 on the property subject to such lease;
(11x) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Factoring or a Qualified Receivables Financing that, in the good faith determination of the Issuer or any direct or indirect parent of the Issuer, is necessary or advisable to effect such Qualified Receivables Factoring or Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12xi) any encumbrance or restriction contained in other Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 3.3; provided that such encumbrances and restrictions will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (iias determined in good faith by the Issuer or any direct or indirect parent of the Issuer);
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 3.3 and 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 is Incurred by does 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 any Restricted Subsidiary or (y) materially affect the Issuer’s ability to make future principal or interest payments on the Notes, in each case, as determined in good faith by the Issuer or any direct or indirect parent of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03Issuer;
(13xiv) any Restricted Investment encumbrance or restriction existing under, by reason or with respect to Refinancing Indebtedness; provided that such encumbrances and restrictions, taken as a whole, are not prohibited materially less favorable to the holders than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refinanced (as determined in good faith by Section 4.04 and the Issuer or any Permitted Investmentdirect or indirect parent of the Issuer); orand
(14xv) any encumbrances encumbrance or restrictions of the type referred to in clauses (a), (b) and (c) above restriction imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in the immediately preceding clauses (1i) through (13xiv) aboveof Section 3.6(b); provided that such amendmentsencumbrances and restrictions contained in any such amendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings refinancing are, in the good faith judgment of the CompanyIssuer or any direct or indirect parent of the Issuer, no not materially more restrictive with respect to such dividend restrictive, taken as a whole, than the encumbrances 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. .
(c) For purposes of determining compliance with this Section 4.053.6, (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 Company Issuer or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company 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 Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiaries (other than the Subsidiary Guarantors) to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary (other than the Subsidiary Guarantors) to:
(aA) (i) pay dividends or make any other distributions to the Company Issuer or any of its Restricted Subsidiaries (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 Company Issuer or any of its Restricted Subsidiaries;
(bB) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries; or
(cC) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries; except in each case for such .
(b) However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1i) contractual encumbrances or restrictions of the Issuer or any of its Restricted Subsidiaries in effect on the Existing First-Lien Issue Acquisition Closing Date, including pursuant to a the Senior Credit Agreement Agreements and the other documents relating to the Senior Credit Documents Agreements, related Swap Contracts, the New Unsecured Notes Indenture, the New Unsecured Notes, the related guarantees and the other documents relating to the New Unsecured Notes Indenture, the Existing Indentures, the Existing Notes, the related guarantees and the other documents relating to the Existing Indentures and Indebtedness permitted pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofSection 3.3(b)(iii);
(2ii) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and Notes, the Guarantees, the Escrow Agreement, the Keepwell Agreement, the Security Documents, the Existing First-Lien Notes Intercreditor Agreements and other documents relating to this Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured NotesGuarantees, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Escrow Agreement, the First-Priority Intercreditor Keepwell Agreement, the First-Lien Security Documents and the Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementAgreements;
(3iii) applicable law or any applicable rule, regulation or order;
(4iv) any agreement or other instrument relating to Indebtedness of a Person acquired by or merged, amalgamated or consolidated with or into the Company Issuer or any Restricted Subsidiary which or an Unrestricted Subsidiary that is designated a Restricted Subsidiary that was in existence at the time of such acquisition (but or at the time it merges with or into the Issuer 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 or to provide all or any portion of the funds or credit support utilized to consummate such acquisitionthereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesPerson, or the property or assets of the Person, so acquiredacquired or designated; provided that in connection with a merger, amalgamation or consolidation under this clause (iv), if a Person other than the Issuer or such Restricted Subsidiary is the successor company with respect to such merger, amalgamation or consolidation, any agreement or instrument of such Person or any Subsidiary of such Person, shall be deemed acquired or assumed, as the case may be, by the Issuer or such Restricted Subsidiary, as the case may be, at the time of such merger, amalgamation or consolidation;
(5v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assetsassets applicable to such assets pending consummation of such sale, including any restriction customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or dispositionSubsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) vii) customary provisions in (x) joint venture agreements or arrangements and other similar agreements or arrangements relating solely to the applicable joint venture and (y) operating or other similar agreements, asset sale agreements and stock sale agreements entered into in connection with the ordinary course entering into of businesssuch transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(9viii) purchase money obligations or for property acquired and Capitalized Lease Obligations, in each case for property so acquired or leased in to the ordinary course of business that extent such obligations impose restrictions of the nature discussed in clause (c) above in the first paragraph of this Section 3.6 on the property so acquired;
(10ix) customary provisions contained in leases, licenses sub-leases, licenses, sublicenses, contracts and other similar agreements entered into in the ordinary course of business that to the extent such obligations impose restrictions of the type described in clause (c) above in the first paragraph of this Section 3.6 on the property subject to such lease;
(11x) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Factoring or a Qualified Receivables Financing that, in the good faith determination of the Issuer or any direct or indirect parent of the Issuer, is necessary or advisable to effect such Qualified Receivables Factoring or Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12xi) any encumbrance or restriction contained in other Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Acquisition Closing Date pursuant to Section 4.03 3.3; provided that such encumbrances and restrictions will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (iias determined in good faith by the Issuer or any direct or indirect parent of the Issuer);
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 3.3 and 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 is Incurred by does 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 any Restricted Subsidiary or (y) materially affect the Issuer’s ability to make future principal or interest payments on the Notes, in each case, as determined in good faith by the Issuer or any direct or indirect parent of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03Issuer;
(13xiv) any Restricted Investment encumbrance or restriction existing under, by reason or with respect to Refinancing Indebtedness; provided that such encumbrances and restrictions, taken as a whole, are not prohibited materially less favorable to the holders than the encumbrances and restrictions contained in the agreements governing the Indebtedness being refinanced (as determined in good faith by Section 4.04 and the Issuer or any Permitted Investmentdirect or indirect parent of the Issuer); orand
(14xv) any encumbrances encumbrance or restrictions of the type referred to in clauses (a), (b) and (c) above restriction imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in the immediately preceding clauses (1i) through (13xiv) aboveof Section 3.6(b); provided that such amendmentsencumbrances and restrictions contained in any such amendment, modificationsmodification, restatementsrestatement, renewalsrenewal, increasesincrease, supplementssupplement, refundingsrefunding, replacements replacement or refinancings refinancing are, in the good faith judgment of the CompanyIssuer or any direct or indirect parent of the Issuer, no not materially more restrictive with respect to such dividend restrictive, taken as a whole, than the encumbrances 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. .
(c) For purposes of determining compliance with this Section 4.053.6, (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 Company Issuer or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company 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 Company Issuer shall not, and shall not permit any of its the Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a1) (iA) pay dividends or make any other distributions to the Company Issuer or any of its the Restricted Subsidiaries (1i) on its Capital Stock; Stock or (2ii) with respect to any other interest or participation in, or measured by, its profits; or (iiB) pay any Indebtedness owed to the Company Issuer or any of its the Restricted Subsidiaries;
(b2) make loans or advances to the Company Issuer or any of its the Restricted Subsidiaries; or
(c3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its the Restricted Subsidiaries; except in each case for such .
(b) Section 4.08(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Existing First-Lien Issue Date, including any encumbrance or restriction pursuant to a (a) the Credit Agreement and the other Credit Agreement Documents, (b) the Existing Senior Credit Documents and pursuant to Unsecured Notes Indentures, the indentures governing the Second-Lien Notes, Existing Senior Subordinated Unsecured Notes and the 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 Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured NotesIntermediate Holdings Guarantee, the Existing Secured NotesNote Guarantees, the indenture governing Collateral Documents and the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor AgreementAgreements;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company Issuer or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiariesSubsidiaries, or the property or assets of the PersonPerson or its Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 4.09 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits (including escrowed funds) or net worth imposed by customers 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) purchase money obligations or Capitalized and Financed 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 (c3) above of Section 4.08(a) on the property so acquiredacquired or leased;
(10) customary provisions contained in leases, licenses and other similar agreements entered into in the ordinary course of business that impose restrictions of the type described in clause (c3) above of Section 4.08(a) on the property subject to such lease;
(11) any encumbrance or restriction on a Special Purpose Securitization Subsidiary that, in the good faith judgment of a Receivables Subsidiary effected senior management or the Board of Directors of the Issuer, is reasonably required in connection with a Qualified Receivables Financingtherewith; provided, however, that such restrictions apply only to such Receivables SubsidiarySpecial Purpose Securitization Subsidiaries;
(12) other Indebtedness, Indebtedness or Disqualified Stock of the Issuer or any of its Restricted Subsidiaries or Preferred Stock of any Restricted Non-Guarantor Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date and permitted pursuant to Section 4.03 4.09; provided that 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 (ii) that is Incurred as determined in good faith by any Restricted Subsidiary senior management or the Board of Directors of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03;
(13) any Restricted Investment not prohibited by Section 4.04 and any Permitted InvestmentIssuer); or
(1413) any encumbrances or restrictions of the type referred to in clauses (a1), (b2) and (c3) above 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 (1312) aboveof this Section 4..08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of senior management or the CompanyBoard of Directors of the Issuer, no more restrictive with respect to such dividend encumbrances and other payment restrictions taken as a whole than those contained in the dividend encumbrances or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. .
(c) For purposes of determining compliance with this Section 4.054.08, (i1) 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 (ii2) the subordination of loans or advances made to the Company Issuer or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company 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. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary of the Company to:
: (a) (i) pay dividends or make any other distributions to the Company on, or any of its Restricted Subsidiaries (1) on in respect of, 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 Company or any of its Restricted Subsidiaries;
(b) make loans or advances or pay any Indebtedness or other obligation owed to the Company or any of its Restricted SubsidiariesGuarantor; or
or (c) sell, lease or transfer any of its properties property or assets to the Company or any of its Restricted Subsidiaries; except in each case Guarantor, except, with respect to clauses (a), (b) and (c), for such encumbrances or restrictions existing under or by reason of:
: (1) contractual encumbrances applicable law, rule, regulation or restrictions in effect on the Existing First-Lien Issue Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereof;
order; (2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes (including the Senior Secured Debt Documents related to the Existing Secured Notes), the 2029 4.625% Notes, the indenture governing the New Second-Lien 2029 4.875% Notes, the New Second-Lien 2033 6.375% Notes, the indenture governing Concurrent Secured Notes (including the New Subordinated Senior Secured Debt Documents related to the Concurrent Secured Notes) and, in each case, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
guarantees in respect thereof; (3) applicable law non-assignment provisions of any contract or any applicable rule, regulation or order;
lease of any Restricted Subsidiary of the Company entered into in the ordinary course of business; (4) any agreement or other instrument relating to Indebtedness of a Person acquired by the Company or any Restricted Subsidiary which was in 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)governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiariesPerson, other than the Person or its subsidiaries, or the property properties or assets of the Person, Person so acquired;
; (5) contracts the Credit Facilities as entered into or agreements for existing on the sale of assetsIssue Date or any amendments, including modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that any restriction restrictions imposed pursuant to any such amendment, modification; restatement, renewal, increase, supplement, refunding, replacement or refinancing are ordinary and customary with respect to a Restricted Subsidiary syndicated bank loans (under the relevant circumstances); (6) agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date; (7) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed pursuant by the holder of such Lien; (8) restrictions imposed by any agreement to an agreement entered into for the sale sell assets or disposition of the Capital Stock or assets of such Restricted Subsidiary permitted under this Indenture to any Person pending the closing of such sale sale; (9) any agreement or disposition;
instrument governing Capital Stock of any Person that is acquired; (610) Secured any Purchase Money Note or other Indebtedness otherwise or other contractual requirements of a Securitization Entity in connection with a Qualified Securitization Transaction; provided that such restrictions apply only to such Securitization Entity; (11) other Indebtedness or Permitted Subsidiary Preferred Stock outstanding on the Issue Date or permitted to be Incurred pursuant issued or incurred under this Indenture; provided that any such restrictions are ordinary and customary with respect to Sections 4.03 and 4.12 that limit the right type of Indebtedness being incurred or Preferred Stock being issued (under the debtor to dispose of the assets securing such Indebtedness;
relevant circumstances); (712) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien 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 (134) and (6) 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’s Board of Directors (evidenced by a Board Resolution) whose judgment shall be conclusively binding, no 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; (14) customary provisions in joint venture, (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 partnership, asset sale, sale leaseback and other similar agreements; and (ii15) customary provisions in leases and other agreements entered into in the subordination ordinary course 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 advancesbusiness.
Appears in 1 contract
Sources: Indenture (TransDigm Group INC)
Dividend and Other Payment Restrictions Affecting Subsidiaries. Section 4.08 of the Indenture shall be amended and restated as follows: The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) (a) (i) pay any dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (1) on its Capital Stock; Stock or (2) with respect to any other interest or participation in, or measured by, its profits; , or (iib) pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries;
(bii) make loans or advances to the Company or any of its Restricted Subsidiaries;
(iii) grant liens or grant security interests on its assets in favor of the Holders of Senior Notes or guarantee the payment of the Senior Notes; or
(civ) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries; , except in each case for such encumbrances or restrictions existing under or by reason of:
(1a) contractual encumbrances or restrictions Existing Indebtedness as in effect on the Existing First-Lien Issue Date, including pursuant to a Credit Agreement and the other Senior Credit Documents and pursuant to the indentures governing the Second-Lien Notes, Senior Subordinated Notes and the guarantees thereofdate of this Indenture;
(2) this Indenture, the Securities (and any Exchange Securities and Note Guarantees thereof) and the Security Documents, the Existing First-Lien Notes Indenture, the Existing First-Lien Notes, the indenture governing the Existing Secured Notes, the Existing Secured Notes, the indenture governing the New Second-Lien Notes, the New Second-Lien Notes, the indenture governing the New Subordinated Notes, the New Subordinated Notes, the Senior Lien Intercreditor Agreement, the First-Priority Intercreditor Agreement, the First-Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement;
(3) applicable law or any applicable rule, regulation or order;
(4b) any agreement Credit Agreement creating or other instrument relating to evidencing Indebtedness of a Person acquired permitted by the Company or any Restricted Subsidiary which was in 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), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person or its subsidiaries, other than the Person or its subsidiaries, or the property or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) 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, licenses and other similar 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;
(11) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary of the Company (i) that is Finance Co. or a Guarantor that is Incurred subsequent to the Existing First-Lien Issue Date pursuant to of Section 4.03 or (ii) that is Incurred by any Restricted Subsidiary of the Company that is not a Guarantor subsequent to the Existing First-Lien Issue Date pursuant to Section 4.03;
(13) any Restricted Investment not prohibited by Section 4.04 4.09 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 thereof;
(c) the Indenture and the Senior Notes;
(d) applicable law;
(e) by reason of customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
(f) purchase money obligations or Vendor Debt for property acquired in the ordinary course of business that impose restrictions of the contracts, instruments or obligations referred nature described in clause (iv) above on the property so acquired;
(g) Indebtedness incurred pursuant to in clauses clause (1viii) through (13) aboveof Section 4.09; provided that such amendmentsencumbrance or restriction only relates to the Subsidiary or Permitted Joint Venture incurring such Indebtedness;
(h) Refinancing Indebtedness, modifications, restatements, renewals, increases, supplements, refundings, replacements provided that such encumbrances or refinancings are, in the good faith judgment of the Company, restrictions are no more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased 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, refunded; and
(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 Secured Notes Indenture, the ability to make distributions on Capital Stock Secured Notes Security Documents 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 advancesSecured Notes.
Appears in 1 contract
Sources: Second Supplemental Indenture (Hyperion Telecommunications Inc)