Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by Level 3 or any other Restricted Subsidiary or pay any Indebtedness or other obligation owed to Level 3 or any other Restricted Subsidiary, (ii) to make loans or advances to Level 3 or any other Restricted Subsidiary or (iii) to transfer any of its Property to Level 3 or any other Restricted Subsidiary. (b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ may, and may permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist (i) any encumbrance or restriction in effect on the Fourth Amendment Effective Date pursuant to any Agreement as in effect on the Fourth Amendment Effective Date, (ii) any encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness contained in any Qualified Receivable Facility or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit the ability of such Restricted Subsidiary, directly or indirectly (including through another Subsidiary of the Borrower) (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Borrower, (ii) to make loans or advances to the Borrower or (iii) to transfer any of its Property (other than in the case of Purchase Money Debt, the Telecommunications/IS Assets installed, constructed, acquired, leased, developed or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the Borrower, (iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired, (iv) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this paragraph (b); provided, however, that the provisions contained in such agreement relating to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof, (v) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreement, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement, (vi) in the case of clause (iii) of paragraph (a) above, customary provisions (A) that restrict the subletting, assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of Property of Level 3 or any Restricted Subsidiary in any manner material to Level 3 or any Restricted Subsidiary, (vii) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or Property of such Restricted Subsidiary; provided, however, that the consummation of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is abandoned and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into, (viii) any encumbrance or restriction pursuant to this Agreement, and (ix) any encumbrance or restriction pursuant to an agreement relating to any Indebtedness of a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 6.02 that is applicable only to such Foreign Restricted Subsidiary and its Subsidiaries.
Appears in 7 contracts
Sources: Credit Agreement (Level 3 Communications Inc), Credit Agreement (Level 3 Communications Inc), Eighth Amendment Agreement (Level 3 Communications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 Except as provided below, the Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary to:
(i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its on any Capital Stock of such Restricted Subsidiary owned by Level 3 or any other Restricted Subsidiary or pay any Indebtedness or other obligation owed to Level 3 the Company or any other Restricted Subsidiary, (ii) to make loans or advances to Level 3 or any other Restricted Subsidiary or (iii) to transfer any of its Property to Level 3 or any other Restricted Subsidiary.
(b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ may, and may permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist
(i) any encumbrance or restriction in effect on the Fourth Amendment Effective Date pursuant to any Agreement as in effect on the Fourth Amendment Effective Date,;
(ii) any encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness contained in any Qualified Receivable Facility or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit the ability of such Restricted Subsidiary, directly or indirectly (including through another Subsidiary of the Borrower) (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Borrower, Company or any other Restricted Subsidiary;
(iiiii) to make loans or advances to the Borrower Company or any other Restricted Subsidiary; or
(iiiiv) to sell, lease or transfer any of its Property property or assets to the Company or any other Restricted Subsidiary; provided that for the avoidance of doubt the following shall not be deemed to constitute such an encumbrance or restriction: (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other than Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis.
(b) The provisions of Section 4.08(a) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Original Issue Date, or in the case of Purchase Money DebtNotes, the Telecommunications/IS Assets installedSubsidiary Guarantees, constructedthe JV Subsidiary Guarantees, acquiredthis Indenture, leasedthe Security Documents, developed or improved with under any Permitted Pari Passu Secured Indebtedness of the proceeds Company or any Subsidiary Guarantor Pledgor or Pari Passu Subsidiary Guarantee of such Purchase Money Debt any Subsidiary Guarantor or any JV Subsidiary Guarantor, and any improvements extensions, refinancings, renewals or accessions thereto) replacements of any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Borrower,Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law, rule, regulation or order;
(iii) any encumbrance or restriction pursuant to an agreement relating with respect to any Acquired DebtPerson or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrance encumbrances or restriction is restrictions are not applicable to any Person, Person or the properties property or assets of any Person, Person other than such Person or the property or assets of such Person so acquired,, and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to that otherwise would be prohibited by the provision described in clause (i), (ii) or (iiiiv) of this paragraph (b); providedSection 4.08(a) if they arise, howeveror are agreed to, in the ordinary course of business and, that the provisions contained (i) restrict in such agreement relating to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof,
(v) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreement, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement,
(vi) in the case of clause (iii) of paragraph (a) above, customary provisions (A) that restrict manner the subletting, assignment or transfer of any Property property or asset that is subject to a lease, lease or license, conveyance (ii) exist by virtue of any Lien on, or agreement to transfer, option or similar contract, (B) contained in asset sale right with respect to any property or other asset disposition agreements limiting the transfer assets of the Property being sold Company or disposed of pending the closing of such sale or disposition any Restricted Subsidiary not otherwise prohibited by this Indenture or (Ciii) arising or agreed to in the ordinary course of business, do not relating relate to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of Property property or assets of Level 3 the Company or any Restricted Subsidiary in any manner material to Level 3 the Company or any Restricted Subsidiary,;
(viiv) any encumbrance or restriction with respect to a Restricted Subsidiary and imposed pursuant to an agreement which that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or Property of property and assets of, such Restricted SubsidiarySubsidiary that is permitted by Section 4.05, Section 4.09 and Section 4.13;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness permitted described under clause (viii), (xiv), (xvi), (xvii), (xviii), (xix) or (xx) of Section 4.05(b) if, as determined by the Board of Directors, the encumbrances or restrictions are (i) customary for such types of agreements and (ii) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make required payment on the Notes and, with respect to Indebtedness permitted under clauses (viii), (xvi), (xvii), (xviii), (xix) and (xx) of Section 4.05(b), any extensions, refinancings, renewals or replacements of any of the foregoing agreements; provided, however, provided that the consummation of encumbrances and restrictions in any such transaction would not result extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in a Default any material respect to the Holders than those encumbrances or an Event of Default, restrictions that such restriction terminates if such transaction is abandoned are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements, to the consummation extent such encumbrance or abandonment of such transaction occurs within one year restriction relates to the activities or assets of the date Company or a Restricted Subsidiary that is a party to such joint venture and if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are customary for a joint venture or similar agreement was entered into,of that type and (ii) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the Company to make the required payments on the Notes, or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) any encumbrance or restriction pursuant to this Agreement, and
(ix) any encumbrance or restriction pursuant to an agreement relating existing with respect to any Indebtedness Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Foreign Restricted Subsidiary Incurred pursuant in accordance with the terms of the Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to clause (ix) any Person or the property or assets of paragraph (b) any Person other than such Subsidiary or its subsidiaries or the property or assets of Section 6.02 such Subsidiary or its subsidiaries, and any extensions, refinancing, renewals or replacements thereof; provided that is applicable only the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to such Foreign Restricted Subsidiary the Holders than those encumbrances or restrictions that are then in effect and its Subsidiariesthat are being extended, refinanced, renewed or replaced.
Appears in 6 contracts
Sources: Indenture (Xinyuan Real Estate Co., Ltd.), Indenture (Xinyuan Real Estate Co., Ltd.), Indenture (Xinyuan Real Estate Co., Ltd.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 shall Except as provided in Section 4.10(b), the Company will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by Level 3 or any other Restricted Subsidiary or pay any Indebtedness or other obligation owed to Level 3 or any other Restricted Subsidiary, (ii) to make loans or advances to Level 3 or any other Restricted Subsidiary or (iii) to transfer any of its Property to Level 3 or any other Restricted Subsidiary.
(b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ may, and may permit any Restricted Subsidiary to, create or otherwise cause or suffer permit to existexist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) any encumbrance or restriction in effect on the Fourth Amendment Effective Date pursuant to any Agreement as in effect on the Fourth Amendment Effective Date,
(ii) any encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness contained in any Qualified Receivable Facility or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit the ability of such Restricted Subsidiary, directly or indirectly (including through another Subsidiary of the Borrower) (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its on any Capital Stock of such Restricted Subsidiary owned by the Borrower Company or any other Borrower Restricted Subsidiary or Subsidiary;
(ii) pay any Indebtedness or other obligation owed to the Borrower, Company or any other Restricted Subsidiary;
(iiiii) to make loans or advances to the Borrower Company or any other Restricted Subsidiary; or
(iiiiv) to sell, lease or transfer any of its Property (other than in the case of Purchase Money Debt, the Telecommunications/IS Assets installed, constructed, acquired, leased, developed property or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) assets to the Borrower,
Company or any other Restricted Subsidiary; provided that (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary; and (iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired,
(iv) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this paragraph (b); provided, however, that the provisions contained in documentation governing Indebtedness requiring transactions between or among the Company and any Restricted Subsidiary or between or among any Restricted Subsidiary to be on fair and reasonable terms or on an arm’s length basis, in each case, shall not be deemed to constitute such agreement relating to such an encumbrance or restriction restriction.
(b) The provisions of Section 4.10(a) do not apply to any encumbrances or restrictions:
(i) existing in agreements as in effect on the Exchange Date, or in the New HY Notes, the Mandatorily Exchangeable Bonds, the Exchange Convertible Bonds, the Subsidiary Guarantees, the JV Subsidiary Guarantees, this Indenture, the indentures governing the other series of New HY Notes, the Mandatorily Exchangeable Bonds, the Exchange Convertible Bonds or the Security Documents, or under any Permitted Pari Passu Secured Indebtedness of the Company or any Subsidiary Guarantor Pledgor or Pari Passu Guarantee, or in any extensions, refinancings, renewals or replacements of any of the foregoing agreements, provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive (as so determined) in any material respect than the provisions contained those encumbrances or restrictions that are then in the agreement the subject thereof,effect and that are being extended, refinanced, renewed or replaced;
(vii) in the case existing under or by reason of clause applicable law, rule, regulation or order;
(iii) with respect to any Person or the property or assets of paragraph (a) abovesuch Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any encumbrance Person or restriction contained the property or assets of any Person other than such Person or the property or assets of such Person so acquired, or in any security agreement (including extensions, refinancings, renewals or replacements thereof, provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a Capital Lease Obligation) securing Indebtedness of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreementwhole, but only are no more restrictive in any material respect to the extent such Holders than those encumbrances or restrictions restrict the transfer of the Property subject to such security agreement,that are then in effect and that are being extended, refinanced, renewed or replaced;
(viiv) that otherwise would be prohibited by the provision described in clause (iv) of Section 4.10(a) if they arise, or are agreed to in the case ordinary course of clause (iii) of paragraph (a) abovebusiness and, customary provisions that (A) that restrict in a customary manner the subletting, assignment or transfer of any Property property or asset that is subject to a lease, lease or license, conveyance or similar contract, (B) contained in asset sale exist by virtue of any Lien on, or other asset disposition agreements limiting the transfer agreement to transfer, option or similar right with respect to any property or assets of the Property being sold Company or disposed of pending the closing of such sale or disposition any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, do not relating relate to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of Property property or assets of Level 3 the Company or any Restricted Subsidiary in any manner material to Level 3 the Company or any Restricted Subsidiary,;
(viiv) any encumbrance or restriction with respect to a Restricted Subsidiary and imposed pursuant to an agreement which that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or Property of property and assets of, such Restricted Subsidiary; providedSubsidiary that is permitted by Section 4.06, howeverSection 4.11 and Section 4.14;
(vi) with respect to any Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the Incurrence of Indebtedness or issuance of Preferred Stock of the type described permitted under clauses (vii), (xiv), (xvi), (xix), (xx), (xxi) and (xxii) of Section 4.06(b) if, as determined by the Board of Directors, such encumbrances or restrictions (A) are customary for such types of agreements and (B) would not, at the time agreed to, be expected to materially and adversely affect the ability of the Company to make any required payment on the Notes, or in any extensions, refinancings, renewals or replacements of any of the foregoing agreements, provided that the consummation of encumbrances and restrictions in any such transaction would not result extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in a Default any material respect to the Holders than those encumbrances or an Event of Default, restrictions that such restriction terminates if such transaction is abandoned are then in effect and that are being extended, refinanced, renewed or replaced;
(vii) existing in customary provisions in joint venture agreements and other similar agreements permitted under this Indenture, to the consummation extent such encumbrance or abandonment restriction relates to the activities or assets of a Restricted Subsidiary that is a party to such transaction occurs within one year joint venture and if (as determined in good faith by the Board of Directors)
(A) the encumbrances or restrictions are customary for a joint venture or similar agreement of that type and (B) the encumbrances or restrictions would not, at the time agreed to, be expected to materially and adversely affect (x) the ability of the date such agreement was entered into,Company to make the required payments on the Notes or (y) any Subsidiary Guarantor or JV Subsidiary Guarantor to make required payments under its Subsidiary Guarantee or JV Subsidiary Guarantee; or
(viii) any encumbrance or restriction pursuant to this Agreement, and
(ix) any encumbrance or restriction pursuant to an agreement relating existing with respect to any Indebtedness Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Foreign Restricted Subsidiary Incurred pursuant in accordance with the terms of this Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to clause (ix) any Person or the property or assets of paragraph (b) any Person other than such Subsidiary or its subsidiaries or the property or assets of Section 6.02 such Subsidiary or its subsidiaries, or any extensions, refinancing, renewals or replacements thereof; provided that is applicable only the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no more restrictive in any material respect to such Foreign Restricted Subsidiary the Holders than those encumbrances or restrictions that are then in effect and its Subsidiariesthat are being extended, refinanced, renewed or replaced.
Appears in 5 contracts
Sources: Indenture (Yin Jia Investments LTD), Indenture (Yin Jia Investments LTD), Indenture (Yin Jia Investments LTD)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by Level 3 or any other Restricted Subsidiary or pay any Indebtedness or other obligation owed to Level 3 or any other Restricted Subsidiary, (ii) to make loans or advances to Level 3 or any other Restricted Subsidiary or (iii) to transfer any of its Property to Level 3 or any other Restricted Subsidiary.
(b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ may, and may permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist
(i) any encumbrance or restriction in effect on the Fourth Amendment Effective Date pursuant to any Agreement as in effect on the Fourth Amendment Effective Measurement Date,
(ii) any encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness contained in any Qualified Receivable Facility or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit the ability of such Restricted Subsidiary, directly or indirectly (including through another Subsidiary of the Borrower) (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Borrower, (ii) to make loans or advances to the Borrower or (iii) to transfer any of its Property (other than in the case of Purchase Money Debt, the Telecommunications/IS Assets installed, constructed, acquired, leased, developed or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the Borrower,
(iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired,
(iv) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this paragraph (b); provided, however, that the provisions contained in such agreement relating to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof,
(v) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreement, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement,
(vi) in the case of clause (iii) of paragraph (a) above, customary provisions (A) that restrict the subletting, assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of Property of Level 3 or any Restricted Subsidiary in any manner material to Level 3 or any Restricted Subsidiary,
(vii) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or Property of such Restricted Subsidiary; provided, however, that the consummation of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is abandoned and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into,, and
(viii) any encumbrance or restriction pursuant to this Agreement, and
(ix) any encumbrance or restriction pursuant to an agreement relating to any Indebtedness of a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 6.02 that is applicable only to such Foreign Restricted Subsidiary and its Subsidiaries.
Appears in 5 contracts
Sources: Credit Agreement (Level 3 Communications Inc), Credit Agreement (Level 3 Communications Inc), Credit Agreement (Level 3 Communications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 Parent shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by Level 3 Parent or any other Restricted Subsidiary or pay any Indebtedness Debt or other obligation owed to Level 3 Parent or any other Restricted Subsidiary, (ii) to make loans or advances to Level 3 Parent or any other Restricted Subsidiary or (iii) to transfer any of its Property to Level 3 Parent or any other Restricted Subsidiary.
(b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ Parent may, and may permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist
exist (i) any encumbrance or restriction pursuant to any agreement in effect on the Fourth Amendment Effective Date pursuant to any Agreement as in effect on Issue Date, including, without limitation, the Fourth Amendment Effective Date,
Existing Credit Facility and the Existing Notes, (ii) any encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3Parent) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness Debt contained in any Qualified Receivable Credit Facility or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02)Debt; provided, however, that such encumbrances and restrictions do not limit permit the ability distribution of funds to the Issuer in an amount sufficient for the Issuer to make the timely payment of interest, premium (if any) and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Debt, including pursuant to offers to purchase) according to the terms of this Indenture and the Securities and other Debt that is solely an obligation of the Issuer, but provided further, however, that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Parent or any Restricted Subsidiary, directly or indirectly customary (including through another Subsidiary of the Borroweras so determined) restrictions on transactions with affiliates and customary (ias so determined) subordination provisions governing Debt owed to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower Parent or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation owed to the BorrowerSubsidiary, (ii) to make loans or advances to the Borrower or (iii) to transfer any of its Property (other than in the case of Purchase Money Debt, the Telecommunications/IS Assets installed, constructed, acquired, leased, developed or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the Borrower,
(iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired,
, (iv) any encumbrance or restriction pursuant to an agreement relating to any Debt of an Issuer Restricted Subsidiary that is a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 1011 that is applicable only to such Issuer Restricted Subsidiary that is a Foreign Restricted Subsidiary and its Subsidiaries, (v) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Debt Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this paragraph (b); provided, however, that the provisions contained in such agreement relating to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof,
, (vvi) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness Debt of Level 3 Parent or a Restricted Subsidiary otherwise permitted under this AgreementIndenture, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement,
, (vivii) in the case of clause (iii) of paragraph (a) above, customary provisions (A) that restrict the subletting, assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to in the ordinary course of business, not relating to any IndebtednessDebt, and that do not, individually or in the aggregate, detract from the value of Property of Level 3 Parent or any Restricted Subsidiary in any manner material to Level 3 Parent or any Restricted Subsidiary,
, (viiviii) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or Property of such Restricted Subsidiary; provided, however, that the consummation of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is abandoned and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into,
(viii) any encumbrance or restriction pursuant to this Agreement, and
and (ix) any encumbrance or restriction pursuant to an agreement relating to any Indebtedness of a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 6.02 that is applicable only to such Foreign Restricted Subsidiary this Indenture and its Subsidiariesthe Securities.
Appears in 5 contracts
Sources: Indenture (Level 3 Communications Inc), Indenture (Level 3 Communications Inc), Indenture (Level 3 Communications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 The Issuers shall not, and shall not permit any Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) of any kind on the ability of any such Restricted Subsidiary to:
(i1) to pay dividends (in cash or otherwise) or make any other distributions in respect permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by an Issuer or any of its Capital Stock owned by Level 3 or any other Restricted Subsidiary or Subsidiaries;
(2) pay any Indebtedness or other obligation owed to Level 3 an Issuer or any other Restricted Subsidiary, ;
(ii3) to make loans or advances to Level 3 an Issuer or any other Restricted Subsidiary Subsidiary; or
(4) transfer its property or (iii) assets to transfer any of its Property to Level 3 an Issuer or any other Restricted Subsidiary.
(b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ may, and may permit Section 5.13(a) shall not restrict any Restricted Subsidiary to, create encumbrances or otherwise cause or suffer to existrestrictions:
(i1) existing under, by reason of or with respect to this Indenture, the Credit Agreement and any encumbrance or restriction other agreement in effect on the Fourth Amendment Effective Issue Date pursuant to any Agreement as in effect on the Fourth Amendment Effective Issue Date,
(ii) any encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3) encumbrance amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness contained in any Qualified Receivable Facility or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit the ability replacements of such Restricted Subsidiary, directly or indirectly (including through another Subsidiary of the Borrower) (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Borrower, (ii) to make loans or advances to the Borrower or (iii) to transfer any of its Property (other than in the case of Purchase Money Debt, the Telecommunications/IS Assets installed, constructed, acquired, leased, developed or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the Borrower,
(iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired,
(iv) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this paragraph (b)agreements; provided, however, that the provisions encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are not materially more restrictive, taken as a whole, than those in effect on the Issue Date;
(2) existing under, by reason of or with respect to any other Indebtedness of the Issuers or their Restricted Subsidiaries permitted under this Indenture; provided, however, that the Issuers have determined in good faith that the encumbrances and restrictions contained in such the agreement relating to such encumbrance or restriction agreements governing the other Indebtedness are no not materially more restrictive (restrictive, taken as so determined) a whole, than those contained in customary comparable financings and will not impair in any material respect the Issuers’ and the Guarantors’ ability to make payments on the Notes and Guarantees thereof when due;
(3) existing with respect to any Person or the property or assets of such Person acquired by an Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the provisions property or assets of such Person so acquired and any amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements thereof; provided, however, that the encumbrances and restrictions in any such amendments, modifications, restatements, extensions, increases, supplements, refundings, refinancing, renewals or replacements are entered into in the ordinary course of business or not materially more restrictive, taken as a whole, than those contained in the agreement instruments or agreements with respect to such Person or its property or assets as in effect on the subject thereof,date of such acquisition;
(v4) existing under, by reason of or with respect to provisions in joint venture, operating or similar agreements;
(5) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreement, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement,Section 5.13(a)(4):
(vi) in the case of clause (iii) of paragraph (a) above, customary provisions (Ai) that restrict in a customary manner the subletting, assignment or transfer of any Property property or asset that is a lease, license, conveyance or contract or similar contractproperty or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of an Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture,
(Biii) contained existing under, by reason of or with respect to (1) purchase money obligations for property acquired in asset sale or other asset disposition agreements limiting the transfer ordinary course of the Property being sold or disposed of pending the closing of such sale or disposition business or (C2) capital leases or operating leases that impose encumbrances or restrictions on the property so acquired or covered thereby, or
(iv) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of Property property or assets of Level 3 an Issuer or any Restricted Subsidiary in any manner material to Level 3 or any an Issuer and its Restricted Subsidiary,Subsidiaries taken as a whole;
(vii6) any encumbrance or restriction with respect to a Restricted Subsidiary that is a Guarantor which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Issuers or any other Restricted Subsidiary other than the assets and property of such Subsidiary; and
(7) with respect to a Restricted Subsidiary and imposed pursuant to an agreement which that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or Property property and assets of, such Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the closing of such sale or other disposition.
(c) Nothing contained in this Section 5.13 shall prevent an Issuer or any Restricted Subsidiary; provided, however, Subsidiary from restricting the sale or other disposition of property or assets of an Issuer or any of its Restricted Subsidiaries that the consummation of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is abandoned and that the consummation or abandonment of such transaction occurs within one year secure Indebtedness of the date such agreement was entered into,
Issuers or any of their Restricted Subsidiaries. For purposes of determining compliance with this Section 5.13, (viii1) the priority of any encumbrance Preferred Stock in receiving dividends or liquidating distributions prior to distributions being paid on common stock shall not be deemed a restriction pursuant on the ability to this Agreement, and
make distributions on Capital Stock and (ix2) any encumbrance the subordination of loans or restriction pursuant advances made to an agreement relating to any Indebtedness of a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 6.02 that is applicable only to other Indebtedness incurred by such Foreign Restricted Subsidiary and its Subsidiariesshall not be deemed a restriction on the ability to make loans or advances.
Appears in 4 contracts
Sources: Ninth Supplemental Indenture (MPT Operating Partnership, L.P.), Eighth Supplemental Indenture (MPT Operating Partnership, L.P.), Fifth Supplemental Indenture (MPT Operating Partnership, L.P.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 shall The Company may not, and shall may not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by Level 3 or any other Restricted Subsidiary or pay any Indebtedness or other obligation owed to Level 3 or any other Restricted Subsidiary, (ii) to make loans or advances to Level 3 or any other Restricted Subsidiary or (iii) to transfer any of its Property to Level 3 or any other Restricted Subsidiary.
(b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ may, and may permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist
(i) any encumbrance or restriction in effect on the Fourth Amendment Effective Date pursuant to any Agreement as in effect on the Fourth Amendment Effective Date,
(ii) any encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness contained in any Qualified Receivable Facility or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit the ability of such Restricted Subsidiary, directly or indirectly (including through another Subsidiary of the Borrower) Company
(i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower Company or any other Borrower Restricted Subsidiary of the Company or pay any Indebtedness Debt or other obligation owed to the Borrower, Company or any other Restricted Subsidiary;
(ii) to make loans or advances to the Borrower Company or any other Restricted Subsidiary; or
(iii) to transfer any of its Property (property or assets to the Company or any other than in Restricted Subsidiary. Notwithstanding the case of Purchase Money Debtforegoing, the Telecommunications/IS Assets installedCompany may, constructedand may permit any Restricted Subsidiary to, acquired, leased, developed suffer to exist any such encumbrance or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the Borrower,restriction:
(iiia) pursuant to any encumbrance or restriction agreement in effect on the Issue Date;
(b) pursuant to an agreement relating to any Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired,acquired and its Subsidiaries;
(ivc) pursuant to any encumbrance one or more Bank Credit Agreements or Vendor Financing Facilities (and renewals, extensions, refinancings or refundings thereof) which is permitted to be outstanding under clause (i) or (ii) of Section 1007 or clause (vi) or (ix) of Section 1008, PROVIDED that such restriction is consistent with, and not materially more restrictive (as conclusively determined in good faith by the Chief Financial Officer of the Company), taken as a whole, than, comparable provisions included in similar agreements or facilities extended to comparable credits engaged in the Telecommunications Business and PROVIDED FURTHER that, in the case of any such Bank Credit Agreement or Vendor Financing Facility entered into by a Restricted Subsidiary under clause (ii) of Section 1007 or clause (ix) of Section 1008, such encumbrances or restrictions do not prohibit dividends, distributions, loans or advances by such Restricted Subsidiary to the Company or another Restricted Subsidiary to the extent that the failure to make such distribution, loan or advance would result in the Company defaulting in the payment of principal or interest on its indebtedness;
(d) pursuant to an agreement effecting a refinancing renewal, refunding or extension of Indebtedness Debt Incurred pursuant to an agreement referred to in clause (i), (iia) or (iiib) of this paragraph above or (b); providede) below, howeverPROVIDED, HOWEVER, that the provisions contained in such renewal, refunding or extension agreement relating to such encumbrance or restriction are no not materially more restrictive (as so determined) conclusively determined in any material respect good faith by the Chief Financial Officer of the Company), taken as a whole, than the provisions contained in the agreement the subject thereof,;
(ve) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction restrictions contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness Debt of Level 3 the Company or a Restricted Subsidiary otherwise permitted under this AgreementIndenture, but only to the extent such restrictions restrict the transfer of the Property property subject to such security agreement,;
(vif) in the case of clause (iii) of paragraph (a) above, customary nonassignment provisions (A) that restrict the subletting, assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to entered into in the ordinary course of business, not relating to any Indebtedness, business in leases and that do not, individually or in the aggregate, detract from the value of Property of Level 3 or any Restricted Subsidiary in any manner material to Level 3 or any Restricted Subsidiary,other agreements;
(viig) any encumbrance or restriction with respect to a Restricted Subsidiary of the Company imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or Property assets of such Restricted Subsidiary; provided, however, provided that the consummation of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is abandoned not consummated and that the such consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into,;
(viiih) any encumbrance pursuant to applicable law or restriction regulations;
(i) pursuant to this Agreement, andIndenture and the Securities; or
(ixj) any encumbrance restriction on the sale or restriction pursuant to an agreement relating to any Indebtedness other disposition of assets or property securing Debt as a result of a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 6.02 that is applicable only to Permitted Lien on such Foreign Restricted Subsidiary and its Subsidiariesassets or property.
Appears in 4 contracts
Sources: Indenture (Nextlink Communications Inc / De), Indenture (Nextlink Communications Inc /De/), Indenture (Nextlink Communications Inc /De/)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 shall Except as provided in Section 3.13(b), the Company will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or consensual restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary to:
(i1) to pay dividends (in cash or otherwise) or make any other distributions on or in respect of its Capital Stock owned by Level 3 to the Company or any other Restricted Subsidiary or pay any Indebtedness or other obligation owed to Level 3 the Company or any other Restricted Subsidiary, ;
(ii2) to make loans or advances to Level 3 to, or Guarantee any Indebtedness or other obligations of, or make any Investment in, the Company or any other Restricted Subsidiary or Subsidiary; or
(iii3) to transfer any of its Property property or assets to Level 3 the Company or any other Restricted Subsidiary.
(b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ may, and may permit any Restricted Subsidiary to, create Section 3.13(a) above will not apply to encumbrances or otherwise cause restrictions existing under or suffer to existby reason of:
(i1) any encumbrance applicable law, rule, regulation or restriction in effect on order;
(2) the Fourth Amendment Effective Date pursuant to any Agreement Indenture, the Notes and the Note Guarantees;
(3) contractual restrictions or encumbrances as in effect on the Fourth Amendment Effective Issue Date,
(ii) any encumbrance or restriction , including under the Loan DocumentsBank Credit Facility, and any amendments, restatements, renewals, replacements or refinancings thereof; provided, that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive, taken as a whole, with respect to such encumbrances or restrictions than those in existence on the Issue Date;
(4) customary (as conclusively determined non-assignment provisions of any contract and customary provisions restricting assignment or subletting in good faith by any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the Chief Financial Officer ability of Level 3) encumbrance or restriction applicable to a Restricted Subsidiary that is contained to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in an agreement or each case permitted to be Incurred under the Indenture;
(5) any instrument governing Acquired Indebtedness not Incurred in connection with, or relating in anticipation or contemplation of, the relevant acquisition merger or consolidation, which encumbrances or restrictions are not, following the acquisition, merger or consolidation, applicable to Indebtedness contained in the Company or any Qualified Receivable Facility or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit the ability of such Restricted Subsidiary, directly or indirectly (including through another Subsidiary of the Borrower) (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Borrower, (ii) to make loans or advances to the Borrower or (iii) to transfer any of its Property (other than in the case of Purchase Money Debt, the Telecommunications/IS Assets installed, constructed, acquired, leased, developed or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the Borrower,
(iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of the Company or any PersonRestricted Subsidiary, other than the Person or the properties or assets of the Person so acquired,;
(iv6) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this paragraph (b); provided, however, that the provisions contained in such agreement relating to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof,
(v) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreement, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement,
(vi) in the case of clause (iii) of paragraph (a) above, customary provisions (A) that restrict the subletting, assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of Property of Level 3 or any Restricted Subsidiary in any manner material to Level 3 or any Restricted Subsidiary,
(vii) any encumbrance or restriction with respect to a Restricted Subsidiary of the Company imposed pursuant to an a binding agreement which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or Property assets of such Restricted Subsidiary; provided, however, that such restrictions apply solely to the consummation Capital Stock or assets of such transaction would Restricted Subsidiary being sold;
(7) customary restrictions imposed on the transfer of copyrighted or patented materials;
(8) Indebtedness of any Restricted Subsidiary not result in a Default or an Event of Default, that such restriction terminates if such transaction is abandoned and that organized under the consummation or abandonment of such transaction occurs within one year laws of the date United States, any state thereof or the District of Columbia permitted to be Incurred subsequent to the Issue Date under Section 3.9, which encumbrances or restrictions are applicable to any such agreement was entered into,Restricted Subsidiary;
(viii9) restrictions on cash or other deposits imposed by landlords, customers or suppliers in contracts in the ordinary course of business to secure the performance of any encumbrance or restriction pursuant to this Agreement, andRestricted Subsidiary thereunder; or
(ix10) any encumbrance an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or restriction Incurred pursuant to an agreement relating referred to any Indebtedness of a Foreign Restricted Subsidiary Incurred pursuant to clause in clauses (ix2) or (5) of paragraph (b) of this Section 6.02 3.13(b); provided, that such Refinancing agreement is applicable only not materially more restrictive with respect to such Foreign Restricted Subsidiary and its Subsidiariesencumbrances or restrictions than those contained in the agreement referred to in such clauses (2) or (5).
Appears in 2 contracts
Sources: Indenture (Constar International Inc), Indenture (Constar Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 shall The Company may not, and shall may not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction (restriction, other than pursuant to law or regulation) , on the ability of any Restricted Subsidiary Subsidiary:
(i1) to pay dividends (dividends, in cash or otherwise) , or make any other distributions in respect of its Capital Stock owned by Level 3 the Company or any other Restricted Subsidiary or pay any Indebtedness Debt or other obligation owed to Level 3 the Company or any other Restricted Subsidiary, ,
(ii2) to make loans or advances to Level 3 the Company or any other Restricted Subsidiary or Subsidiary, or
(iii3) to transfer any of its Property to Level 3 the Company or any other Restricted Subsidiary.
(b) Notwithstanding Despite the foregoing above limitation, ▇▇▇▇▇ ▇ the Company may, and may permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist:
(i1) any encumbrance or restriction pursuant to any agreement in effect on the Fourth Amendment Effective Date date of the Indenture and pursuant to any Agreement the Permanent Credit Facility (or, in each case, encumbrances or restrictions that are substantially similar taken as in effect on the Fourth Amendment Effective Date,a whole);
(ii2) any encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3the Company) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness Debt contained in any Qualified Receivable Facility Credit Facilities or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02)Debt; provided, however, provided that such encumbrances and restrictions do not limit prohibit the ability distribution of funds to the Company in an amount sufficient for the Company to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Debt, including pursuant to offers to purchase) according to the terms of the Indenture and the Notes 71 77 and other Debt that is solely an obligation of the Company, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, restricted payment, leverage, interest coverage invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of the Company or any Restricted Subsidiary, directly or indirectly customary (including through another Subsidiary of the Borroweras so determined) restrictions on transactions with affiliates and customary (ias so determined) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation subordination provisions governing Debt owed to the Borrower, (ii) to make loans Company or advances to the Borrower or (iii) to transfer any of its Property (other than in the case of Purchase Money Debt, the Telecommunications/IS Assets installed, constructed, acquired, leased, developed or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the BorrowerRestricted Subsidiary,
(iii3) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired,
(iv4) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Debt Incurred pursuant to an agreement referred to in clause (i1), (ii2) or (iii3) of this paragraph (b); provided, however, that the provisions contained in such agreement relating to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement governing the subject thereof,Debt being refinanced;
(v5) in the case of clause (iii3) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness Debt of Level 3 the Company or a Restricted Subsidiary otherwise permitted under this Agreementthe Indenture, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement,;
(vi6) in the case of clause (iii3) of paragraph (a) above, customary provisions (A) o that restrict the subletting, assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) o contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) o arising or agreed to in the ordinary course of business, not relating to any IndebtednessDebt, and that do not, individually or in the 72 78 aggregate, detract from the value of Property of Level 3 the Company or any Restricted Subsidiary in any manner material to Level 3 the Company or any Restricted Subsidiary,
(vii7) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or Property of such Restricted Subsidiary; provided, however, provided that the consummation of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is abandoned and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into,;
(viii) 8) any encumbrance or restriction pursuant to this Agreement, the Indenture and the Notes (or encumbrances or restrictions that are substantially similar taken as a whole); and
(ix) any encumbrance or restriction pursuant to an agreement relating to any Indebtedness of a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 6.02 that is applicable only to such Foreign Restricted Subsidiary and its Subsidiaries.
Appears in 2 contracts
Sources: Indenture (Williams Communications Group Inc), Indenture (Williams Communications Group Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 shall Except as provided in paragraph (b) below, the Company will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary to:
(i1) to pay dividends (in cash or otherwise) or make any other distributions on or in respect of its Capital Stock owned by Level 3 to the Company or any other Restricted Subsidiary or pay any Indebtedness or other obligation owed to Level 3 the Company or any other Restricted Subsidiary, ;
(ii2) to make loans or advances to Level 3 the Company or any other Restricted Subsidiary or Subsidiary; or
(iii3) to transfer any of its Property property or assets to Level 3 the Company or any other Restricted Subsidiary.
(b) Notwithstanding Paragraph (a) above will not apply to encumbrances or restrictions existing under or by reason of:
(1) applicable law rule, regulation or order;
(2) this Indenture or the foregoing limitation, ▇▇▇▇▇ ▇ may, Notes;
(3) customary non-assignment provisions of any contract and may permit customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary to, create or otherwise cause or suffer to existSubsidiary;
(i4) any encumbrance or restriction in effect on the Fourth Amendment Effective Date pursuant to any Agreement as in effect on the Fourth Amendment Effective Date,
(ii) any encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing Acquired Indebtedness not Incurred in connection with, or relating to Indebtedness contained in any Qualified Receivable Facility anticipation or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit the ability of such Restricted Subsidiary, directly or indirectly (including through another Subsidiary of the Borrower) (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Borrower, (ii) to make loans or advances to the Borrower or (iii) to transfer any of its Property (other than in the case of Purchase Money Debtcontemplation of, the Telecommunications/IS Assets installedrelevant acquisition, constructed, acquired, leased, developed merger or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the Borrower,
(iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debtconsolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired,;
(iv5) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this paragraph (b); provided, however, that the provisions contained in such agreement relating to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof,
(v) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreement, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement,
(vi) in the case of clause (iii) of paragraph (a) above, customary provisions (A) that restrict the subletting, assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of Property of Level 3 or any Restricted Subsidiary in any manner material to Level 3 or any Restricted Subsidiary,
(vii) any encumbrance or restriction with respect to a Restricted Subsidiary of the Company imposed pursuant to an a binding agreement which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or Property assets of such Restricted Subsidiary; provided, however, provided that such restrictions apply solely to the consummation Capital Stock or assets of such transaction would Restricted Subsidiary being sold;
(6) Liens permitted to be Incurred under Section 3.17;
(7) provisions limiting the payment of dividends in the organizational documents, shareholders’ agreements, joint venture agreements or similar documents of, or related to, Restricted Subsidiaries that are not result Wholly- Owned Subsidiaries and which have been entered into in a Default the ordinary course of business;
(8) restrictions contained in the terms of Indebtedness incurred pursuant to Section 3.12(2)(d), mortgage financing or an Event Capitalized Lease Obligations Incurred in the ordinary course of Default, business; provided that such restriction terminates if restrictions relate only to the assets acquired or financed with such transaction is abandoned and that Indebtedness;
(9) encumbrances or restrictions contained in the consummation terms of Indebtedness entered into after the Issue Date so long as such encumbrances or abandonment of such transaction occurs within one year restrictions included therein will not materially impair the Company’s ability to make payments on the Notes when due, in the good faith judgment of the date Board of Directors of the Company as certified to the Trustee in an Officers’ Certificate at the time such agreement was entered into,encumbrances or restrictions are agreed to;
(viii10) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business;
(11) customary restrictions imposed on the transfer of copyrighted or patented materials;
(12) net worth provisions in leases and other agreements entered into in the ordinary course of business;
(13) any encumbrance customary restriction on the ability of a Restricted Subsidiary to pay dividends or restriction pursuant make any other distributions or pay any indebtedness to this Agreement, the Company or any other Restricted Subsidiary during the continuance of an event of default under Indebtedness other than the Notes;
(14) contractual requirements with respect to Indebtedness Incurred in accordance with Section 3.12(2)(i) that are customary for a financing of that type; and
(ix15) any encumbrance an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or restriction Incurred pursuant to an agreement referred to in clauses (2), (4), (6), (8) or (9) above; provided that the provisions relating to such encumbrance or restriction contained in any Indebtedness of such Indebtedness, taken as a Foreign Restricted Subsidiary Incurred pursuant whole, are no less favorable in any material respect to the Company than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clause (ix2), (4), (6), (8) or (9) of paragraph (b) of Section 6.02 that is applicable only to such Foreign Restricted Subsidiary and its Subsidiariesrespectively, above.
Appears in 2 contracts
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 shall The Issuer will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary to:
(i) to pay dividends (dividends, in cash or otherwise) , or make any other distributions on or in respect of its Capital Stock owned by Level 3 or any other Restricted Subsidiary interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness or other obligation owed to Level 3 the Issuer or any other Restricted Subsidiary, ;
(iiiii) to make loans or advances to Level 3 or any other Restricted Subsidiary or (iii) to transfer any of its Property to Level 3 the Issuer or any other Restricted Subsidiary; or
(iv) transfer any of its properties or assets to the Issuer or any other Restricted Subsidiary; provided that (A) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (B) the subordination of (including the application of any standstill period to) loans or advances made to the Issuer or any Restricted Subsidiary to other Indebtedness incurred by the Issuer or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ may, and may permit any Restricted Subsidiary to, create Section 4.08(a) will not apply to encumbrances or otherwise cause restrictions existing under or suffer to existby reason of:
(i) any encumbrance the Notes (including Additional Notes), this Indenture, the Senior Credit Facilities and the security documents related thereto or restriction in effect on by other indentures or agreements governing other Indebtedness incurred by the Fourth Amendment Effective Date pursuant to any Agreement Issuer ranking equally with the Notes; provided that the encumbrances or restrictions imposed by such other indentures or agreements are not materially more restrictive, taken as in effect on a whole, than the Fourth Amendment Effective Date,encumbrances or restrictions imposed by this Indenture;
(ii) any encumbrance agreements with respect to Indebtedness of the Issuer or restriction under any Restricted Subsidiary permitted to be incurred subsequent to the Loan Documents, Issue Date pursuant to Section 4.09 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that such encumbrances or restrictions are not materially less favorable, taken as a whole, to the Holders of the Notes than is customary in comparable financings (as conclusively determined in good faith by the Chief Financial Officer Board of Level 3) encumbrance Directors or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness contained in any Qualified Receivable Facility or Purchase Money Debt Incurred pursuant to clause (ii) member of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit the ability of such Restricted Subsidiary, directly or indirectly (including through another Subsidiary senior management of the Borrower) (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Borrower, (ii) to make loans or advances to the Borrower or (iii) to transfer any of its Property (other than in the case of Purchase Money Debt, the Telecommunications/IS Assets installed, constructed, acquired, leased, developed or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the Borrower,Issuer);
(iii) any encumbrance agreement in effect on the Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or restriction pursuant refinancings of those agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to an such dividend and other payment restrictions than those contained in those agreements on the Issue Date (as determined in good faith by the Board of Directors or a member of senior management of the Issuer);
(iv) customary non-assignment and similar provisions in contracts, leases and licenses entered into in the ordinary course of business;
(v) any agreement relating to or other instrument of a Person (including its Subsidiaries), acquired by the Issuer or any Acquired DebtRestricted Subsidiary in effect at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the property or assets of the Person, so acquired,
(iv) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this paragraph (b); provided, however, that the provisions contained in such agreement relating to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof,
(v) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement acquired (including a Capital Lease Obligation) securing Indebtedness of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreement, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement,its Subsidiaries);
(vi) in any agreement for the case of clause (iii) of paragraph (a) above, customary provisions (A) that restrict the subletting, assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold Capital Stock or disposed all or substantially all of the property and assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the closing of such its sale or disposition other disposition;
(vii) Liens permitted to be incurred under Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(viii) applicable law, rule, regulation or order or the terms of any governmental licenses, authorizations, concessions, franchises or permits;
(Cix) arising encumbrances or agreed to restrictions on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of Property of Level 3 or any Restricted Subsidiary in any manner material to Level 3 or any Restricted Subsidiary,;
(viix) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement which has been entered into for customary limitations on the sale distribution or disposition of all assets or substantially all property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment), which limitations are applicable only to the assets that are the subject of such agreements;
(xi) purchase money obligations and mortgage financings for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions on the property purchased or leased of the Capital Stock or Property of such Restricted Subsidiarynature described in Section 4.08(a)(iv); provided, however, that the consummation of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is abandoned and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into,
(viii) any encumbrance or restriction pursuant to this Agreement, and
(ixxii) any encumbrance agreement that extends, renews, amends, modifies, restates, supplements, refunds, refinances or restriction replaces the agreements containing the encumbrances or restrictions in the foregoing clauses (i) through (xi), or in this clause (xii); provided that the terms and conditions of any such encumbrances or restrictions are not materially less favorable, taken as a whole, to the Holders of the Notes than those under or pursuant to an the agreement relating to any Indebtedness of a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 6.02 that is applicable only to such Foreign Restricted Subsidiary and its Subsidiariesso extended, renewed, amended, modified, restated, supplemented, refunded, refinanced or replaced.
Appears in 2 contracts
Sources: 2019 Notes Indenture (North Atlantic Drilling Ltd.), 2019 Notes Indenture (North Atlantic Drilling Ltd.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by Level 3 the Issuer or any other Restricted Subsidiary or pay any Indebtedness Debt or other obligation owed to Level 3 the Issuer or any other Restricted Subsidiary, (ii) to make loans or advances to Level 3 the Issuer or any other Restricted Subsidiary or (iii) to transfer any of its Property to Level 3 the Issuer or any other Restricted Subsidiary.
(b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ the Issuer may, and may permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist
exist (i) any encumbrance or restriction pursuant to any agreement in effect on the Fourth Amendment Effective Date pursuant to any Agreement as in effect on Issue Date, including, without limitation, the Fourth Amendment Effective Date,
Existing Credit Facility and the Existing Notes, (ii) any encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3the Issuer) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness Debt contained in any Qualified Receivable Credit Facility or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02)Debt; provided, however, that such encumbrances and restrictions do not limit permit the ability distribution of funds to the Issuer in an amount sufficient for the Issuer to make the timely payment of interest, premium (if any) and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Debt, including pursuant to offers to purchase) according to the terms of this Indenture and the Securities and other Debt that is solely an obligation of the Issuer, but provided further, however, that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of the Issuer or any Restricted Subsidiary, directly or indirectly customary (including through another Subsidiary of the Borroweras so determined) restrictions on transactions with affiliates and customary (ias so determined) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation subordination provisions governing Debt owed to the BorrowerIssuer or any Restricted Subsidiary, (ii) to make loans or advances to the Borrower or (iii) to transfer any of its Property (other than in the case of Purchase Money Debt, the Telecommunications/IS Assets installed, constructed, acquired, leased, developed or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the Borrower,
(iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired,
, (iv) any encumbrance or restriction pursuant to an agreement relating to any Debt of a Foreign Financing Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 1011 that is applicable only to such Foreign Financing Restricted Subsidiary and its Subsidiaries, (v) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Debt Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this paragraph (b); provided, however, that the provisions contained in such agreement relating to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof,
, (vvi) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness Debt of Level 3 the Issuer or a Restricted Subsidiary otherwise permitted under this AgreementIndenture, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement,
, (vivii) in the case of clause (iii) of paragraph (a) above, customary provisions (A) that restrict the subletting, assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to in the ordinary course of business, not relating to any IndebtednessDebt, and that do not, individually or in the aggregate, detract from the value of Property of Level 3 the Issuer or any Restricted Subsidiary in any manner material to Level 3 the Issuer or any Restricted Subsidiary,
, (viiviii) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or Property of such Restricted Subsidiary; provided, however, that the consummation of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is abandoned and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into,
(viii) any encumbrance or restriction pursuant to this Agreement, and
and (ix) any encumbrance or restriction pursuant to an agreement relating to any Indebtedness of a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 6.02 that is applicable only to such Foreign Restricted Subsidiary this Indenture and its Subsidiariesthe Securities.
Appears in 2 contracts
Sources: Indenture (Level 3 Communications Inc), Indenture (Level 3 Communications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by Level 3 or any other Restricted Subsidiary or pay any Indebtedness or other obligation owed to Level 3 or any other Restricted Subsidiary, (ii) to make loans or advances to Level 3 or any other Restricted Subsidiary or (iii) to transfer any of its Property to Level 3 or any other Restricted Subsidiary.
(b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ may, and may permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist
(i) any encumbrance or restriction in effect on the Fourth Amendment Effective Date pursuant to any Agreement agreement as in effect on the Fourth Amendment Effective Date,
(ii) Date and any encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness contained in any Qualified Receivable Facility or Purchase Money Debt Incurred pursuant to clause ,
(ii) restrictions that are not materially more restrictive, taken as a whole, than customary provisions in comparable financings and that, as determined by the management of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit Level 3 at the ability time of such Restricted Subsidiaryfinancing, directly or indirectly (including through another Subsidiary of will not materially impair the Borrower) (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Borrower, (ii) ’s ability to make loans or advances to the Borrower or (iii) to transfer any of its Property (other than in the case of Purchase Money Debt, the Telecommunications/IS Assets installed, constructed, acquired, leased, developed or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the Borrowerpayments as required under this Agreement,
(iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired,
(iv) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this paragraph (b); provided, however, that the provisions contained in such agreement relating to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof,
(v) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreement, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement,
(vi) in the case of clause (iii) of paragraph (a) above, customary provisions (A) that restrict the subletting, assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of Property of Level 3 or any Restricted Subsidiary in any manner material to Level 3 or any Restricted Subsidiary,
(vii) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or Property of such Restricted Subsidiary; provided, however, that the consummation of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is abandoned and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into,
(viii) any encumbrance or restriction pursuant to this Agreement, and
(ix) any encumbrance or restriction pursuant to an agreement relating to any Indebtedness of a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 6.02 that is applicable only to such Foreign Restricted Subsidiary and its Subsidiaries.
Appears in 2 contracts
Sources: Thirteenth Amendment Agreement (Level 3 Parent, LLC), Amendment Agreement (Level 3 Communications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 shall The Company will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective or enter into any consensual encumbrance or restriction (other than pursuant to law or regulationRegulatory Requirements) on the ability of any Restricted Subsidiary to (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of on its Capital Stock Interests owned by Level 3 the Company or any other Restricted Subsidiary or pay any Indebtedness Debt or other obligation owed to Level 3 the Company or any other Restricted Subsidiary, (ii) to make loans or advances to Level 3 the Company or any other Restricted Subsidiary or (iii) to sell, lease or transfer any of its Property property or assets to Level 3 the Company or any other of its Restricted SubsidiarySubsidiaries.
(b) Notwithstanding Section 4.08(a) hereof shall not apply to the foregoing limitationfollowing encumbrances or restrictions:
(1) encumbrances and restrictions in existence on the Issue Date;
(2) encumbrances and restrictions under this Indenture, ▇▇▇▇▇ ▇ maythe Notes and the Note Guarantees;
(3) customary supermajority voting provisions and other customary provisions with respect to the disposition or distribution of assets, each contained in corporate charters, bylaws, stockholders’ agreements, limited liability company agreements, partnership agreements, Joint Venture agreements and may permit other similar agreements;
(4) encumbrances and restrictions required by any Regulatory Requirement or any Regulatory Authority;
(5) customary restrictions in agreements governing Liens permitted to be incurred under this Indenture, including Section 4.12 hereof; provided that such restrictions relate solely to the property subject to such Lien;
(6) encumbrances and restrictions contained in any merger agreement or any agreement for the sale or other disposition of an asset, including the Capital Interests or other securities or obligations of a Subsidiary, provided that such disposition is made in compliance with this Indenture, including Sections 4.10 and 5.01 hereof;
(7) restrictions on Eligible Cash Equivalents or other deposits imposed by suppliers, customers or landlords under contracts entered into in the ordinary course or consistent with past practice or arising in connection with any Permitted Liens;
(8) provisions in leases, subleases, licenses, or sublicenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business or consistent with industry practices or that in the judgment of the Company would not materially impair the Company’s ability to make payments on the Notes when due;
(9) restrictions or conditions contained in any trading, netting, operating, construction, service, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to the agreement, the payment rights thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(10) encumbrances and restrictions contained in contracts (other than relating to Debt) entered into in the ordinary course of business that do not, in the aggregate, detract from the value of the property or assets of the Company or any Restricted Subsidiary to, create in any material manner (including non-assignment provisions or otherwise cause or suffer to existrestrictions on subletting and sublicensing in leases and licenses);
(i11) encumbrances and restrictions contained in agreements governing Debt permitted to be Incurred under this Indenture, including Section 4.09 hereof;
(12) in the case of the redesignation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of all or substantially all of the assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, any agreement or other instrument of such Unrestricted Subsidiary (but, in each such case, not created in contemplation thereof);
(13) any encumbrance or restriction contained in effect on the Fourth Amendment Effective Date pursuant any agreement, instrument or Capital Interest of a Person, or with respect to any Agreement property or asset, acquired after the Issue Date (including by merger or consolidation) as in effect on at the Fourth Amendment Effective Date,
(ii) any encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness contained in any Qualified Receivable Facility or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit the ability time of such Restricted Subsidiary, directly or indirectly acquisition (including through another Subsidiary of the Borrower) (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation owed except to the Borrowerextent such agreement, (ii) to make loans instrument or advances to the Borrower Capital Interest was incurred in connection with or (iii) to transfer any of its Property (other than in the case of Purchase Money Debt, the Telecommunications/IS Assets installed, constructed, acquired, leased, developed or improved with the proceeds contemplation of such Purchase Money Debt and any improvements or accessions thereto) to the Borrower,
(iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debtacquisition), which encumbrance or restriction is not applicable to any Person, or the properties any property or assets of any Personassets, as applicable, other than the Person or the property or assets so acquired,;
(iv14) any encumbrance or restriction pursuant created in connection with any Funding Debt, or with respect to an any Funding Assets, or applicable to any Funding Entity formed in connection therewith (including encumbrances and restrictions on Restricted Subsidiaries other than the Funding Entities related to such Funding Debt);
(15) encumbrances and restrictions contained in customary lock-up agreements entered into in connection with a proposed sale or issuance of Capital Interests;
(16) customary encumbrances and restrictions contained in Swap Contracts, Hedging Obligations and Treasury Management Agreements;
(17) encumbrances and restrictions arising out of Preferred Interests relating to the payment of dividends and distributions with respect to other Capital Interests; and
(18) encumbrances and restrictions contained in any agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to or instrument or Capital Interest that amends, modifies, restates, renews, increases, supplements, refunds, replaces, extends or refinances any agreement, instrument or Capital Interest described in clause clauses (i), 1) through (ii) or (iii18) of this paragraph (bSection 4.08(b); provided, howeverfrom time to time, in whole or in part, provided that the provisions encumbrances or restrictions set forth therein are not materially more restrictive, taken as a whole, than those contained in such agreement relating the predecessor agreement, instrument or Capital Interest. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof,
(v) in the case of clause (iii) of paragraph (a) aboverestriction, any an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions and accessions thereto, assets and property affixed or appurtenant thereto, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
(c) Nothing contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreement, but only to Section 4.08 shall prevent the extent such restrictions restrict the transfer of the Property subject to such security agreement,
(vi) in the case of clause (iii) of paragraph (a) above, customary provisions (A) that restrict the subletting, assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of Property of Level 3 Company or any Restricted Subsidiary in from (i) creating, incurring, assuming or suffering to exist any manner material to Level 3 Liens otherwise permitted by Section 4.12 hereof or any Restricted Subsidiary,
(viiii) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement which has been entered into for restricting the sale or other disposition of all property or substantially all assets of the Capital Stock Company or Property any of such its Restricted Subsidiary; provided, however, Subsidiaries that the consummation of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is abandoned and that the consummation or abandonment of such transaction occurs within one year secure Debt of the date such agreement was entered into,
(viii) Company or any encumbrance or restriction pursuant to this Agreement, and
(ix) any encumbrance or restriction pursuant to an agreement relating to any Indebtedness of a Foreign its Restricted Subsidiary Subsidiaries Incurred pursuant to clause (ix) of paragraph (b) of Section 6.02 that is applicable only to such Foreign Restricted Subsidiary in accordance with Sections 4.09 and its Subsidiaries4.12 hereof.
Appears in 1 contract
Sources: Indenture (Atlanticus Holdings Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 Except as provided in Section 3.12(b), the Company shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary to:
(i) to pay dividends (in cash or otherwise) or make any other distributions on or in respect of its Capital Stock owned by Level 3 to the Company or any other Restricted Subsidiary or pay any Indebtedness or other obligation owed to Level 3 the Company or any other Restricted Subsidiary, ;
(ii) to make loans or advances to Level 3 to, or Guarantee any Indebtedness or other obligations of, or make any Investment in, the Company or any other Restricted Subsidiary or Subsidiary; or
(iii) to transfer any of its Property property or assets to Level 3 the Company or any other Restricted Subsidiary.
(b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ may, and may permit any Restricted Subsidiary to, create Section 3.12(a) shall not apply to encumbrances or otherwise cause restrictions existing under or suffer to existby reason of:
(i) applicable law, rule, regulation or order;
(ii) this Indenture, the Notes or the Subsidiary Guarantees;
(iii) the terms of any encumbrance Indebtedness outstanding on the Issue Date, and any amendments or restriction restatements thereof; provided that any amendment or restatement is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date;
(iv) the Franchise Documents or the L/C Documents;
(v) the terms of any binding agreement with respect to any Restricted Subsidiary relating to its Capital Stock or assets in effect on the Fourth Amendment Effective Date pursuant to any Agreement as in effect on the Fourth Amendment Effective Issue Date,
(ii) any encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3) encumbrance amendments or restriction applicable restatements thereof; provided that any amendment or restatement is not materially more restrictive with respect to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness contained in any Qualified Receivable Facility or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and or restrictions do not limit than those in existence on the ability of such Restricted Subsidiary, directly or indirectly (including through another Subsidiary of the Borrower) (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Borrower, (ii) to make loans or advances to the Borrower or (iii) to transfer any of its Property (other than in the case of Purchase Money Debt, the Telecommunications/IS Assets installed, constructed, acquired, leased, developed or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the Borrower,
(iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired,
(iv) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this paragraph (b); provided, however, that the provisions contained in such agreement relating to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof,
(v) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreement, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement,Issue Date;
(vi) in the case of clause (iii) of paragraph (a) above, customary provisions (A) that restrict the subletting, assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) contained in asset sale or other asset disposition agreements limiting restrictions on the transfer of assets subject to any Permitted Lien;
(vii) customary provisions restricting the Property being sold ability of any Restricted Subsidiary to undertake any action described in Section 3.12(a)(i) through Section 3.12(a)(iii) in joint venture agreements and other similar agreements entered into in the ordinary course of business and with the approval of the Company’s Board of Directors;
(viii) customary restrictions on cash or disposed of pending the closing of such sale other deposits imposed by customers under contracts or disposition or (C) arising other arrangements entered into or agreed to in the ordinary course of business, not relating to ;
(ix) customary non-assignment provisions of any Indebtedness, license agreement or other contract and that do not, individually customary provisions restricting assignment or in the aggregate, detract from the value of Property of Level 3 or any Restricted Subsidiary subletting in any manner material to Level 3 or lease governing a leasehold interest of any Restricted Subsidiary,, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset that is subject to a Lien that secures Indebtedness, in each case permitted to be Incurred under this Indenture;
(viix) any encumbrance or restriction restrictions with respect to a Restricted Subsidiary of the Company imposed pursuant to an a binding agreement which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or Property assets of such Restricted Subsidiary; providedprovided that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold;
(xi) customary restrictions imposed on the transfer of copyrighted or patented materials;
(xii) Purchase Money Indebtedness and Capital Lease Obligations that impose encumbrances and restrictions only on the assets so acquired or subject to lease;
(xiii) restrictions (A) with respect to any Person, howeveror to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary, or (B) with respect to 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 extensions, renewals, replacements or refinancings of any of the foregoing, provided that the consummation encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the noteholders than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(xiv) pursuant to provisions in instruments governing other Indebtedness, Disqualified Stock or Preferred Stock of Restricted Subsidiaries permitted to be Incurred after the Issue Date pursuant to Section 3.8; provided that (i) such provisions are customary for instruments of such transaction would not result type (as determined in a Default or an Event good faith by the Company’s Board of Default, Directors) and (ii) the Company’s Board of Directors determines in good faith that such restriction terminates if such transaction is abandoned and that restrictions will not materially adversely impact the consummation or abandonment of such transaction occurs within one year ability of the date such agreement was entered into,Company to make required principal and interest payments on the Notes;
(viiixv) any encumbrance or restriction customary restrictions pursuant to this Agreement, any Permitted Receivables Financing; and
(ixxvi) any encumbrance an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or restriction Incurred pursuant to an agreement relating referred to any Indebtedness of a Foreign Restricted Subsidiary Incurred pursuant to clause in clauses (ixi)–(xvi) of paragraph (b) of this Section 6.02 3.12(b); provided that such Refinancing agreement is applicable only not materially more restrictive with respect to such Foreign Restricted Subsidiary and its Subsidiariesencumbrances or restrictions than those contained in the agreement referred to in such clauses (i)–(xvi).
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 Unless and until the Termination and Release shall have occurred, the Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) of any kind on the ability of any Restricted Subsidiary to (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by Level 3 or any other Restricted Subsidiary or pay any Indebtedness or other obligation owed to Level 3 the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to Level 3 the Company or any other Restricted Subsidiary or (iiiiv) to transfer any of its Property property or assets to Level 3 the Company or any other Restricted Subsidiary.
(b) Notwithstanding the . The foregoing limitation, ▇▇▇▇▇ ▇ may, and may permit provision shall not restrict or prohibit any Restricted Subsidiary to, create encumbrances or otherwise cause or suffer to exist
restrictions: (i) existing pursuant to: (A) this Indenture, the Securities, the Security Documents or any encumbrance or restriction agreements in effect on the Fourth Amendment Effective Closing Date pursuant to or in any Agreement as in effect on the Fourth Amendment Effective Date,
(ii) Indebtedness containing any such encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness contained in any Qualified Receivable Facility or Purchase Money Debt Incurred permitted pursuant to clause (iiiv) below or in any extensions, refinancings, renewals or replacements of paragraph any of the foregoing; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced or (bB) under Section 6.01 any agreement which imposes such encumbrances or clause restrictions on Persons other than a Guarantor, Palm Shipping or any Subsidiary of a Guarantor or Palm Shipping; 52 61 (ii) existing under any other agreement providing for the Incurrence of paragraph Indebtedness of any Restricted Subsidiary (bother than a Guarantor or Palm Shipping) under that is permitted to be Incurred by Section 6.02 (or refinancing Indebtedness thereof Incurred 4.03; provided that the encumbrances and restrictions in any such agreement are no less favorable in any material respect to the Holders than those encumbrances and restrictions existing as of the Closing Date and permitted pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit the ability of such Restricted Subsidiary, directly or indirectly (including through another Subsidiary of the Borrower) (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Borrower, (ii) to make loans or advances to the Borrower or above; (iii) existing under and by reason of applicable law; (iv) existing with respect to transfer any Person or the property or assets of its Property such Person (other than in a Guarantor or Palm Shipping) acquired by the case of Purchase Money Debt, Company or any Restricted Subsidiary and existing at the Telecommunications/IS Assets installed, constructed, acquired, leased, developed or improved with the proceeds time of such Purchase Money Debt and any improvements or accessions thereto) to the Borrower,
(iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debtacquisition, which encumbrance encumbrances or restriction is restrictions are not applicable to any Person, Person or the properties property or assets of any Person, Person other than such Person or the property or assets of such Person so acquired,
(iv) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this paragraph (b); provided, however, that the provisions contained in such agreement relating to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof,
(v) in the case of clause (iiiiv) of the first paragraph (a) aboveof this Section 4.05, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreement, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement,
(vi) in the case of clause (iii) of paragraph (a) above, customary provisions (A) that restrict in a customary manner the subletting, assignment or transfer of any Property property or asset that is a lease, license, conveyance or contract or similar contractproperty or asset, (B) contained in asset sale existing by virtue of any transfer of, agreement to transfer, option or other asset disposition agreements limiting the transfer right with respect to, or Lien on, any property or assets of the Property being sold Company or disposed of pending any Restricted Subsidiary not otherwise prohibited by the closing of such sale or disposition Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of Property property or assets of Level 3 the Company or any Restricted Subsidiary in any manner material to Level 3 the Company and its Restricted Subsidiaries; or any Restricted Subsidiary,
(viivi) any encumbrance or restriction with respect to a Restricted Subsidiary (other than a Guarantor or Palm Shipping), imposed pursuant to an agreement which that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or Property all, or substantially all, of the property and assets of, such Restricted Subsidiary; provided. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) entering into any agreement permitting or providing for the incurrence of Liens otherwise permitted in Section 4.08, however(2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness (other than the Securities and the Subsidiary Guarantees) of the Company or any of its Restricted Subsidiaries or (3) amending, that modifying or supplementing any charter or similar arrangement between Palm Shipping and a vessel-owning Subsidiary of the consummation Company (other than the Charters) solely (A) to lower the rates paid by Palm Shipping to such vessel-owning Subsidiary under such charter or similar arrangement or (B) to increase the rates paid by Palm Shipping to such vessel-owning Subsidiary under such charter or similar arrangement to the extent required to 53 62 service (x) Indebtedness for money borrowed, Incurred in good faith (as determined by the Board of Directors) and not with the purpose of evading the requirements of this covenant, in connection with the financing or the refinancing of Indebtedness of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is abandoned and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into,
(viii) any encumbrance or restriction pursuant to this Agreement, and
(ix) any encumbrance or restriction pursuant to an agreement relating to any Indebtedness of a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 6.02 that is applicable only to such Foreign Restricted Subsidiary and its Subsidiaries(y) expenses incurred by such Subsidiary in the ordinary course of business.
Appears in 1 contract
Sources: Indenture (Teekay Shipping Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by 118 Level 3 or any other Restricted Subsidiary or pay any Indebtedness or other obligation owed to Level 3 or any other Restricted Subsidiary, (ii) to make loans or advances to Level 3 or any other Restricted Subsidiary or (iii) to transfer any of its Property to Level 3 or any other Restricted Subsidiary.
(b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ may, and may permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist
(i) any encumbrance or restriction in effect on the Fourth Amendment Effective Date pursuant to any Agreement agreement as in effect on the Fourth Amendment Effective Date,
(ii) Date and any encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness contained in any Qualified Receivable Facility or Purchase Money Debt Incurred pursuant to clause ,
(ii) restrictions that are not materially more restrictive, taken as a whole, than customary provisions in comparable financings and that, as determined by the management of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit Level 3 at the ability time of such Restricted Subsidiaryfinancing, directly or indirectly (including through another Subsidiary of will not materially impair the Borrower) (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Borrower, (ii) ’s ability to make loans or advances to the Borrower or (iii) to transfer any of its Property (other than in the case of Purchase Money Debt, the Telecommunications/IS Assets installed, constructed, acquired, leased, developed or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the Borrowerpayments as required under this Agreement,
(iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired,
(iv) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this paragraph (b); provided, however, that the provisions contained in such agreement relating to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof,
(v) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreement, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement,
(vi) in the case of clause (iii) of paragraph (a) above, customary provisions (A) that restrict the subletting, assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of Property of Level 3 or any Restricted Subsidiary in any manner material to Level 3 or any Restricted Subsidiary,
(vii) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement which has been entered into for the sale or 119 disposition of all or substantially all of the Capital Stock or Property of such Restricted Subsidiary; provided, however, that the consummation of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is abandoned and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into,
(viii) any encumbrance or restriction pursuant to this Agreement, and
(ix) any encumbrance or restriction pursuant to an agreement relating to any Indebtedness of a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 6.02 that is applicable only to such Foreign Restricted Subsidiary and its Subsidiaries.
Appears in 1 contract
Sources: Credit Agreement
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by Level 3 or any other Restricted Subsidiary or pay any Indebtedness or other obligation owed to Level 3 or any other Restricted Subsidiary, (ii) to make loans or advances to Level 3 or any other Restricted Subsidiary or (iii) to transfer any of its Property to Level 3 or any other Restricted Subsidiary.:
(b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ may, and may permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist
(i) any encumbrance or restriction in effect on the Fourth Amendment Effective Date pursuant to any Agreement as in effect on the Fourth Amendment Effective Date,
(ii) any encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness contained in any Qualified Receivable Facility or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit the ability of such Restricted Subsidiary, directly or indirectly (including through another Subsidiary of the Borrower) (i1) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower Issuer or any other Borrower Restricted Subsidiary or pay any Indebtedness Debt or other obligation owed to the BorrowerIssuer or any other Restricted Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends, distributions or liquidating distributions prior to dividends, distributions or liquidating distributions being paid on Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and any subordination of any obligation to any other obligation shall not be deemed a restriction on the ability to pay any Debt or other obligation);
(ii2) to make loans or advances to the Borrower Issuer or any other Restricted Subsidiary (iiiit being understood that the subordination of loans and advances to the Issuer or any of its Restricted Subsidiaries to other Debt incurred by the Issuer or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3) otherwise to transfer any of its Property property or assets to the Issuer or any other Restricted Subsidiary.
(other than b) Notwithstanding the restrictions in the case of Purchase Money DebtSection 4.8(a), the Telecommunications/IS Assets installedIssuer may, constructedand may permit any Restricted Subsidiary to, acquired, leased, developed suffer to exist any such encumbrance or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the Borrower,restriction:
(iii1) pursuant to any encumbrance or restriction agreement in effect on the Issue Date (including the Amended and Restated Credit Agreement and the Existing Notes Indenture);
(2) pursuant to this Indenture, the Notes and the Subsidiary Guarantees, if any;
(3) pursuant to an agreement relating to any Acquired DebtDebt Incurred by or Capital Stock of a Person (other than a Restricted Subsidiary existing on the Issue Date or any Restricted Subsidiary carrying on any of the businesses of any such Restricted Subsidiary) prior to the date on which such Person became a Restricted Subsidiary and outstanding on such date and not Incurred in connection with, or anticipation of, becoming a Restricted Subsidiary, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired,; provided that the Incurrence of such Debt was permitted under Section 4.9;
(iv4) any encumbrance or restriction pursuant to an agreement effecting a renewal, refunding, replacement, refinancing or extension of Indebtedness Debt Incurred pursuant to an agreement referred to in clause (i), (ii1) or (iii3) of this paragraph (bSection 4.8(b); provided, however, that the provisions contained in such renewal, refunding, replacement, refinancing or extension agreement relating to such encumbrance or restriction are no not materially more restrictive (restrictive, taken as so determined) in any material respect a whole, than the provisions contained in the agreement being renewed, refunded, replaced, refinanced or extended, in each case as determined in good faith by the subject thereof,Board of Directors or an Officer of the Issuer;
(v5) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Finance Lease Obligation) securing Indebtedness Debt of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreement, but only Indenture; provided that any such encumbrance or restriction is released to the extent such restrictions restrict the transfer of underlying Lien is released or the Property subject to such security agreement,related Debt repaid;
(vi6) in the case of clause (iii) of paragraph (a) above, any customary provisions (A) that restrict the subletting, non-assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to provision entered into in the ordinary course of businessbusiness in licenses, not relating leases and other contracts to the extent such provisions restrict the transfer, assignment or subletting of any Indebtedness, and that do not, individually such license or in lease or the aggregate, detract from the value assignment of Property of Level 3 or rights under any Restricted Subsidiary in any manner material to Level 3 or any Restricted Subsidiary,such contract;
(vii7) any encumbrance or restriction with respect to a Restricted Subsidiary Subsidiary, imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or Property assets of such Restricted Subsidiary; provided, however, that the consummation of such transaction would not result in a Default or an Event of Default, provided that such restriction terminates if such transaction is abandoned and that the consummation closed or abandonment of such transaction occurs within one year of the date such agreement was entered into,abandoned;
(viii8) pursuant to restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) by virtue of any Restricted Investment not prohibited by Section 4.7 or any Permitted Investment;
(10) of a Receivables Subsidiary effected in connection with a Permitted Securitization; provided that such restrictions apply only to such Receivables Subsidiary;
(11) in bona fide contracts for the sale of any property or assets;
(12) any encumbrance or restriction pursuant contained in the terms of any Debt or Capital Stock otherwise permitted to be Incurred under this Agreement, and
(ix) Indenture if the Issuer determines that any such encumbrance or restriction either (i) will not materially affect the Issuer’s ability to make principal or interest payments on the Notes and such restrictions are not materially less favorable to Holders of Notes than is customary in comparable financings or (ii) are not materially more restrictive, taken as a whole, 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 or those contained in this Indenture, the Amended and Restated Credit Agreement or the Existing Notes Indenture, in each case as determined in good faith by the Board of Directors or an agreement relating Officer of the Issuer;
(13) restrictions applicable to any Indebtedness Foreign Subsidiaries;
(14) customary provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 6.02 that Investment), which limitation is applicable only to the assets that are the subject of such Foreign Restricted Subsidiary and its Subsidiariesagreements; or
(15) if such encumbrance or restriction is the result of applicable laws or any applicable rule, regulation or order.
Appears in 1 contract
Sources: Indenture (Newell Brands Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 VHS Holdco II shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any such Restricted Subsidiary to:
(i1) to pay dividends (in cash or otherwise) or make any other distributions in respect of on its Capital Stock owned by Level 3 to VHS Holdco II or any of its Restricted Subsidiaries, or with respect to any other Restricted Subsidiary interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligation owed to Level 3 VHS Holdco II or any other of its Restricted Subsidiary, Subsidiaries;
(ii2) to make loans or advances to Level 3 VHS Holdco II or any other of its Restricted Subsidiary Subsidiaries; or
(3) sell, lease or (iii) to transfer any of its Property properties or assets to Level 3 VHS Holdco II or any other of its Restricted SubsidiarySubsidiaries.
(b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ may, and may permit any Restricted Subsidiary to, create The restrictions in Section 4.06(a) hereof shall not apply to encumbrances or otherwise cause restrictions existing under or suffer to existby reason of:
(i1) any encumbrance contractual encumbrances or restriction restrictions in effect on the Fourth Amendment Effective Date Issue Date, including, without limitation, pursuant to any Existing Indebtedness, the Credit Agreement as in effect on and related documentation, Hedging Obligations, this Indenture and the Fourth Amendment Effective Date,Notes;
(ii2) [Reserved];
(3) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in Section 4.06(a)(3) hereof;
(4) applicable law or any applicable rule, regulation or order;
(5) any encumbrance agreement or restriction under the Loan Documents, and other instrument of a Person acquired by VHS Holdco II or any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness contained in any Qualified Receivable Facility or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit existence at the ability time of such Restricted Subsidiary, directly or indirectly acquisition (including through another Subsidiary of the Borrower) (i) to pay dividends (but not created in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Borrower, (ii) to make loans or advances to the Borrower or (iii) to transfer any of its Property (other than in the case of Purchase Money Debt, the Telecommunications/IS Assets installed, constructed, acquired, leased, developed or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the Borrower,
(iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debtcontemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person Person, or the property or assets of the Person, so acquired,;
(iv6) any encumbrance or restriction contracts for the sale of assets, including, without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement effecting a refinancing that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(7) secured Indebtedness Incurred otherwise permitted to be incurred pursuant to Sections 4.07 and 4.10 hereof that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) other Indebtedness of Restricted Subsidiaries that are Guarantors which Indebtedness is permitted to be incurred pursuant to an agreement referred entered into subsequent to the Issue Date in clause accordance with Section 4.07 hereof;
(i)10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business, including, without limitation, provisions limiting the disposition or distribution of assets or property; provided that such limitations are applicable only to the assets or property that are the subject of such joint venture agreements and are owned by such joint venture;
(ii11) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of VHS Holdco II or any Restricted Subsidiary;
(iii12) of this paragraph (b); provided, however, that the customary provisions contained in such agreement relating to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained licenses of intellectual property and other similar agreements entered into in the agreement the subject thereof,ordinary course of business;
(v13) customary provisions restricting subletting or assignment of any lease governing a leasehold interest;
(14) customary provisions restricting assignment of any agreement entered into in the case ordinary course of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreement, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement,business;
(vi15) in the case of clause (iii) of paragraph (a) above, customary provisions (A) that restrict the subletting, assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to contracts entered into in the ordinary course of business, not relating related to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of Property property or assets of Level 3 VHS Holdco II or any Restricted Subsidiary in any manner material to Level 3 VHS Holdco II or any Restricted Subsidiary,;
(vii16) any encumbrances or restrictions of the type referred to in Section 4.06(a)(1), (2) and (3) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in Sections 4.06(b)(1) and (5); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Board of Directors of VHS Holdco II, 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; or
(17) any encumbrance or restriction of a Securitization Subsidiary effected in connection with respect to a Restricted Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or Property of such Restricted SubsidiaryQualified Securitization Financing; provided, however, that the consummation of such transaction would not result in a Default or an Event of Default, provided that such restriction terminates if such transaction is abandoned and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into,
(viii) any encumbrance or restriction pursuant to this Agreement, and
(ix) any encumbrance or restriction pursuant to an agreement relating to any Indebtedness of a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 6.02 that is applicable restrictions apply only to such Foreign Restricted Subsidiary and its SubsidiariesSecuritization Subsidiary.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 shall Except as provided in paragraph (b) below, IRSA will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary to:
(i1) to pay dividends (in cash or otherwise) or make any other distributions on or in respect of its Capital Stock owned by Level 3 to IRSA or any other Restricted Subsidiary or pay any Indebtedness or other obligation owed to Level 3 IRSA or any other Restricted Subsidiary, ; 11924629
(ii2) to make loans or advances to Level 3 IRSA or any other Restricted Subsidiary or Subsidiary; or
(iii3) to transfer any of its Property property or assets to Level 3 IRSA or any other Restricted Subsidiary.
(b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ may, and may permit any Restricted Subsidiary to, create Paragraph (a) above will not apply to encumbrances or otherwise cause restrictions existing under or suffer to existby reason of:
(i1) applicable law rule, regulation or order;
(2) this Indenture or the Securities of any encumbrance or restriction series;
(3) the terms of any agreements governing Indebtedness in effect existence on the Fourth Amendment Effective Date pursuant to any Agreement as in effect on the Fourth Amendment Effective Issue Date,
(ii) any encumbrance or restriction under the Loan Documents, and any amendment, modification, restatement, renewal, restructuring, replacement or refinancing thereof;
(4) customary (as conclusively determined non-assignment provisions of any contract and customary provisions restricting assignment or subletting in good faith by any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the Chief Financial Officer ability of Level 3) encumbrance or restriction applicable to a Restricted Subsidiary that is contained to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in an agreement or each case permitted to be Incurred under this Indenture;
(5) any instrument governing Acquired Indebtedness not Incurred in connection with, or relating to Indebtedness contained in any Qualified Receivable Facility anticipation or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit the ability of such Restricted Subsidiary, directly or indirectly (including through another Subsidiary of the Borrower) (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Borrower, (ii) to make loans or advances to the Borrower or (iii) to transfer any of its Property (other than in the case of Purchase Money Debtcontemplation of, the Telecommunications/IS Assets installedrelevant acquisition, constructed, acquired, leased, developed merger or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the Borrower,
(iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debtconsolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired,;
(iv6) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this paragraph (b); provided, however, that the provisions contained in such agreement relating to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof,
(v) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreement, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement,
(vi) in the case of clause (iii) of paragraph (a) above, customary provisions (A) that restrict the subletting, assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of Property of Level 3 or any Restricted Subsidiary in any manner material to Level 3 or any Restricted Subsidiary,
(vii) any encumbrance or restriction with respect to a Restricted Subsidiary of IRSA imposed pursuant to an a binding agreement which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or Property assets of such Restricted Subsidiary; provided, however, provided that such restrictions apply solely to the consummation Capital Stock or assets of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is abandoned and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into,Restricted Subsidiary being sold;
(viii7) the terms of any encumbrance or restriction pursuant to this Agreement, and
(ix) any encumbrance or restriction pursuant to an agreement relating to any agreements governing Indebtedness of a Foreign Restricted Subsidiary Alto ▇▇▇▇▇▇▇ ▇.▇. permitted to be Incurred pursuant subsequent to clause the Issue Date in accordance with the covenant described above under the caption Section 3.16; provided that (ixi) such agreements permit Alto ▇▇▇▇▇▇▇ ▇.▇. to pay annual dividends or make other distributions in respect of paragraph its Capital Stock (so long as (a) no default or event of default has occurred and is continuing under the relevant agreement, or would occur immediately after giving effect to such dividend or distribution and (b) of Section 6.02 that is applicable only to such Foreign Restricted Subsidiary and its Subsidiaries.)
Appears in 1 contract
Sources: Indenture (Cresud Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Level 3 shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction (other than pursuant to law or regulation) on the ability of any Restricted Subsidiary (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by Level 3 or any other Restricted Subsidiary or pay any Indebtedness or other obligation owed to Level 3 or any other Restricted Subsidiary, (ii) to make loans or advances to Level 3 or any other Restricted Subsidiary or (iii) to transfer any of its Property to Level 3 or any other Restricted Subsidiary.
(b) Notwithstanding the foregoing limitation, ▇▇▇▇▇ ▇ may, and may permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist
(i) any encumbrance or restriction pursuant to the Loan Documents in effect on the Fourth Amendment Effective Date pursuant to any Agreement as in effect on the Fourth Amendment Effective Measurement Date,
(ii) any encumbrance or restriction under the Loan Documents, and any customary (as conclusively determined in good faith by the Chief Financial Officer of Level 3) encumbrance or restriction applicable to a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness contained in any Qualified Receivable Facility or Purchase Money Debt Incurred pursuant to clause (ii) of paragraph (b) under Section 6.01 or clause (ii) of paragraph (b) under Section 6.02 (or refinancing Indebtedness thereof Incurred pursuant to clause (viii) of paragraph (b) under Section 6.01 or clause (vi) of paragraph (b) under Section 6.02); provided, however, that such encumbrances and restrictions do not limit the ability of such Restricted Subsidiary, directly or indirectly (including through another Subsidiary of the Borrower) (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock owned by the Borrower or any other Borrower Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Borrower, (ii) to make loans or advances to the Borrower or (iii) to transfer any of its Property (other than in the case of Purchase Money Debt, the Telecommunications/IS Assets installed, constructed, acquired, leased, developed or improved with the proceeds of such Purchase Money Debt and any improvements or accessions thereto) to the Borrower,
(iii) any encumbrance or restriction pursuant to an agreement relating to any Acquired Debt, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired,
(iv) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this paragraph (b); provided, however, that the provisions contained in such agreement relating to such encumbrance or restriction are no more restrictive (as so determined) in any material respect than the provisions contained in the agreement the subject thereof,
(v) in the case of clause (iii) of paragraph (a) above, any encumbrance or restriction contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness of Level 3 or a Restricted Subsidiary otherwise permitted under this Agreement, but only to the extent such restrictions restrict the transfer of the Property subject to such security agreement,
(vi) in the case of clause (iii) of paragraph (a) above, customary provisions (A) that restrict the subletting, assignment or transfer of any Property that is a lease, license, conveyance or similar contract, (B) contained in asset sale or other asset disposition agreements limiting the transfer of the Property being sold or disposed of pending the closing of such sale or disposition or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of Property of Level 3 or any Restricted Subsidiary in any manner material to Level 3 or any Restricted Subsidiary,
(vii) any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the Capital Stock or Property of such Restricted Subsidiary; provided, however, that the consummation of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is abandoned and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into,, and
(viii) any encumbrance or restriction pursuant to this Agreement, and
(ix) any encumbrance or restriction pursuant to an agreement relating to any Indebtedness of a Foreign Restricted Subsidiary Incurred pursuant to clause (ix) of paragraph (b) of Section 6.02 that is applicable only to such Foreign Restricted Subsidiary and its Subsidiaries.
Appears in 1 contract