Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to: (1) pay dividends or make any other distributions on its Capital Stock to Loral Space or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space or any of its Restricted Subsidiaries; (2) make loans or advances to Loral Space or any of its Restricted Subsidiaries; or (3) transfer any of its properties or assets to Loral Space or any of its Restricted Subsidiaries. (b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of: (1) Existing Indebtedness as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Date; (2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary; (3) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date; (4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors; (5) applicable law; (6) any instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty to be incurred; (7) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices; (8) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08; (9) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition; (10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced; (11) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien; (12) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and (13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
Appears in 4 contracts
Samples: Guaranty (Loral Cyberstar Inc), Guaranty (Loral Cyberstar Inc), Guaranty (Loral Space & Communications LTD)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to Loral Space or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space or any of its Restricted Subsidiaries;
(2) make loans or advances to Loral Space or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to Loral Space or any of its Restricted Subsidiaries.
(b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Subordinated Notes and the Guarantees of the Subordinated Notes by the Subsidiary Guarantors;
(5) applicable law;
(6) any instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty to be incurred;
(7) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
(8) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08;
(9) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(12) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
(13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
Appears in 3 contracts
Samples: Subordinated Guaranty (Loral Cyberstar Inc), Subordinated Guaranty (Loral Space & Communications LTD), Subordinated Guaranty (Loral Cyberstar Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to Loral Space the Issuer or any of its other Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness Indebtedness owed to Loral Space the Issuer or any Restricted Subsidiary (it being understood that the priority of its any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and the subordination of loans or advances made to the Issuer or any Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to pay any Indebtedness);
(2) make loans or advances to Loral Space the Issuer or any other Restricted Subsidiary (it being understood that the subordination of its loans or advances made to the Issuer or any Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to Loral Space the Issuer or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of its Restricted Subsidiariestransfer described in clause (1) or (2) of this Section 4.09(a)).
(b) The restrictions set forth in paragraph (aSection 4.09(a) of this Section 4.08 shall not apply to prohibit encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness Indebtedness, as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as agreements in effect on the Issue Date;
(2) this Indenture and the Notes (and any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired DebtNote Guarantee), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendmentsapplicable law, modificationsrule, restatements, renewals, increases, supplements, refundings, replacements regulation or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Dateorder;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5) applicable law;
(6) any instrument governing Indebtedness or Capital Stock of a Person Restricted Subsidiary acquired by Loral Space the Issuer or any of its Restricted Subsidiaries Subsidiary as in effect at the time of such acquisition or at the time an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisitionacquisition or redesignation), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the PersonPerson or any of its Subsidiaries, or the property or assets of the PersonPerson or any of its Subsidiaries, so acquiredacquired or redesignated; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted to be incurred by the terms of this Guaranty to be incurredIndenture;
(75) customary non-assignment provisions in leases contracts and licenses entered into in the ordinary course of business and consistent with past practicesbusiness;
(8) 6) customary restrictions in leases (including capital leases), security agreements or mortgages or other purchase money obligations for property acquired in the ordinary course of business that to the extent they impose restrictions on the property so acquired purchased or leased of the nature described in clause (3) of paragraph (a) of this Section 4.084.09(a)(3);
(97) any agreement for the sale or other disposition of all or substantially all the Capital Stock or the assets of a Restricted Subsidiary that to the extent it restricts distributions by that Restricted Subsidiary pending its the sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that 8) restrictions in connection with Liens permitted to be incurred under Section 4.13 to the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness that extent they limit the right of the debtor to dispose of the assets subject to such LienLiens, including such restrictions in respect of Permitted Purchase Money Indebtedness and Permitted Nonrecourse Indebtedness;
(129) provisions with respect to limiting the disposition or distribution of assets or property in joint venture agreements, assets asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into in agreements, which limitation is applicable only to the ordinary course assets that are the subject of business; andsuch agreements;
(1310) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(11) customary provisions imposed on the transfer of copyrighted or patented materials;
(12) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary;
(13) contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or any such Restricted Subsidiary;
(14) restrictions on the transfer of property or assets required by any regulatory authority having jurisdiction over the Issuer or any Restricted Subsidiary or any of their businesses;
(15) any encumbrances or restrictions existing under (A) development agreements or other contracts entered into with municipal entities, agencies or sponsors in connection with the entitlement or development of real property or (B) agreements for funding of infrastructure, including in respect of the issuance of community facility district bonds, metro district bonds, xxxxx-xxxx bonds and subdivision improvement bonds, and similar bonding requirements arising in the ordinary course of business;
(16) any encumbrances or restrictions that require “lockbox” or similar arrangements with respect to Non-Recourse Debt, Permitted Nonrecourse Indebtedness and Permitted Purchase Money Indebtedness;
(17) any encumbrances or restrictions of the type referred to in Section 4.09(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (16) above or clause (18) below of this Section 4.09(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings, in the good faith judgment of the Senior Management or the Board of Directors, are not materially more restrictive, taken as a whole, with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(18) other Indebtedness permitted to be incurred subsequent to the Issue Date pursuant to Section 4.10; provided that such encumbrances or restrictions under this clause (18) shall not materially adversely affect the Issuer’s ability to make anticipated principal and interest payments on the Notes (in the good faith judgment of Senior Management or the Board of Directors).
Appears in 3 contracts
Samples: Indenture (Forestar Group Inc.), Indenture (Forestar Group Inc.), Indenture (Forestar Group Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (1i)(a) pay dividends or make any other distributions on its Capital Stock to Loral Space the Company or any of its Restricted Subsidiaries, Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (b) pay any indebtedness owed to Loral Space the Company or any of its Restricted Subsidiaries;
, (2ii) make loans or advances to Loral Space the Company or any of its Restricted Subsidiaries; or
Subsidiaries or (3iii) transfer any of its properties or assets to Loral Space the Company or any of its Restricted Subsidiaries.
(b) The . However, the foregoing restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
of (1a) Existing Indebtedness as in effect on the Issue Date Date, (b) this Indenture and the Notes, and Indebtedness ranking pari passu with the Notes provided such provisions are no more restrictive than the Notes (c) the Credit Agreement and any amendmentsForeign Subsidiary Credit Agreement, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings the restrictions contained in the Credit Agreement are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in a credit agreement with terms that are commercially reasonable for a borrower that has substantially comparable Indebtedness and provided, further, that no such Existing Indebtedness, as provision in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on shall prohibit or restrict the Issue Date and ability of any amendmentsRestricted Subsidiary to pay dividends or make other upstream distributions or other payments to the Company or any of its Restricted Subsidiaries, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5d) applicable law;
, (6e) any instrument governing Indebtedness or Capital Stock of a Person or assets acquired by Loral Space the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided thatprovided, that in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty the Indenture to be incurred;
, (7f) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
, (8) g) purchase money obligations (including pursuant to Purchase Money Indebtedness obligations) for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3iii) of paragraph above on the property so acquired, constructed, leased or improved, (a) of this Section 4.08;
(9h) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
, provided that the consummation of such transaction would not result in an Event of Default or an event that, with the passing of time or giving of notice or both, would constitute an Event of Default, that such restriction terminates if such transaction is not consummated and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into, (10i) Permitted Refinancing Indebtedness; , provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being extended, refinanced;
, renewed, replaced, defeased or refunded, (11j) Liens securing Indebtedness otherwise permitted to be incurred pursuant to Section 4.12 hereof that limit the right of the debtor Company or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
, (12k) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
, and (13l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space Holdings shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction (provided, that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction) on the ability of any such Restricted Subsidiary to:
: (1) (i) pay dividends or make any other distributions to Holdings or any Restricted Subsidiary on its Capital Stock to Loral Space or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any indebtedness Indebtedness owed to Loral Space Holdings or, in the case of a Restricted Subsidiary that is not the Issuer or a Subsidiary Guarantor, to any of its Restricted Subsidiaries;
Subsidiary that is the Issuer or a Subsidiary Guarantor; (2) make loans or advances to Loral Space Holdings or, in the case of a Restricted Subsidiary that is not the Issuer or a Subsidiary Guarantor, to any of its Restricted SubsidiariesSubsidiary that is the Issuer or a Subsidiary Guarantor; or
or (3) sell, lease or transfer any of its properties or assets to Loral Space Holdings or, in the case of a Restricted Subsidiary that is not the Issuer or a Subsidiary Guarantor, to any of its Restricted SubsidiariesSubsidiary that is the Issuer or a Subsidiary Guarantor.
(b) The restrictions set forth in paragraph (aSection 4.11(a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
: (1) Existing Indebtedness as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements contractual encumbrances or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty Senior Credit Facilities and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital the related documentation and other financial covenants, customary (as so determined) covenants regarding Hedging Obligations and the merger related documentation and similar restrictions contained in any future credit facility or Hedging Obligations of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiaryguaranteed by Holdings; (2) (i) this Indenture, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Note Guarantees and similar restrictions contained in the documentation entered into in connection with any future debt securities issued or guaranteed by Holdings and (ii) the Existing Secured Notes Indenture, the Existing Secured Notes and the guarantees thereof; (3) purchase money obligations for property acquired in the ordinary course of business and capital lease obligations that impose restrictions of the Notes by nature discussed in Section 4.11(a)(3) on the Subsidiary Guarantors;
property so acquired; (4) applicable law or any applicable rule, regulation or order; (5) applicable law;
(6) any agreement or other instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space or merged, amalgamated or consolidated with and into Holdings or any of its Restricted Subsidiaries as in effect existence at the time of such acquisition (except to or at the extent such Indebtedness was incurred time it merges, amalgamates or consolidates with or into Holdings or any of its Restricted Subsidiaries or assumed in connection with or the acquisition of assets from such Person (but, in any such case, not created in contemplation of such acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the PersonPerson so acquired and its Subsidiaries, or the property or assets of the Person, Person so acquired and its Subsidiaries or the property or assets so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty to be incurred;
(7) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
(8) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08;
(9) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(12) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
(13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space Parent shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay pay
(a) dividends or make any other distributions to Parent or any Restricted Subsidiary (I) on its Capital Stock to Loral Space or any of its Restricted Subsidiaries, or (II) with respect to any other interest or participation in, or measured by, its profits, or pay or
(b) any indebtedness Indebtedness owed to Loral Space Parent or any of its Restricted SubsidiariesSubsidiary;
(2ii) make loans or advances to Loral Space Parent or any of its Restricted SubsidiariesSubsidiary; or
(3iii) transfer any of its properties or assets to Loral Space Parent or any of its Restricted SubsidiariesSubsidiary.
(b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply Notwithstanding the foregoing, Parent or a Restricted Subsidiary may directly or indirectly, create or otherwise cause or suffer to exist or become effective any such encumbrances or restrictions existing under or by reason of:
(1i) Existing Indebtedness as in effect on the Issue Date Date, including Indebtedness under this Indenture, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided provided, however, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such the Existing Indebtedness, Indebtedness as in effect on the Issue Date;
(2ii) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Working Capital Financing Lines or Warehouse Facilities permitted under Section 4.09 or Indebtedness incurred in any agreement pursuant to clause which any such Working Capital Financing Lines or Warehouse Facilities were Incurred; or
(4iii) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances this Indenture and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted SubsidiaryNotes;
(3iv) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements applicable law or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement by judicial or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Dateregulatory action;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5) applicable law;
(6v) any instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space Parent or any of its Restricted Subsidiaries Subsidiary as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred Incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided provided, however, that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty Indenture to be incurredIncurred;
(7vi) by reason of customary non-assignment provisions in contracts or leases entered into in the ordinary course of business and consistent with past industry practices;
(8) vii) purchase money obligations for property acquired in the ordinary course of business consistent with industry practices that impose restrictions on the property so acquired of the nature described in clause (3a)(iii) of paragraph (a) of this Section 4.08above on the property so acquired;
(9viii) any agreement for Indebtedness of the sale Issuer or other disposition of a Restricted Subsidiary Guarantors, provided that restricts distributions by that Restricted Subsidiary pending its sale or other dispositionsuch Indebtedness was permitted to be Incurred pursuant to this Indenture;
(10ix) Permitted Refinancing Indebtedness; provided , provided, however, that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11x) Liens securing Indebtedness that limit the right customary restrictions on transfers of the debtor to dispose of the assets property subject to such Liena Lien permitted under this Indenture;
(12xi) provisions with respect customary restrictions contained in an agreement for the sale or disposition of Capital Stock or assets of a Restricted Subsidiary or an agreement entered into for the sale of specified assets (in either case, so long as such encumbrance or restriction, by its terms, terminates on the earlier of the termination of such agreement or the consummation of such agreement and so long as such restriction applies only to the disposition Capital Stock or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; andto be sold);
(13xii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of businessbusiness consistent with industry practices, provided that such restrictions do not materially impair the Issuer's ability to pay interest on and repay the Notes as and when the same become due and payable;
(xiii) provisions with respect to the pro rata disposition or distributions of assets or property in accordance with joint venture agreements and similar agreements;
(xiv) any encumbrance or restriction in effect on the Issue Date; or
(xv) any encumbrance or restriction contained in agreements and related documents governing or pertaining to Securitization Transactions.
Appears in 1 contract
Samples: Indenture (A 1 Homes Group Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to Loral Space the Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space the Issuer or any of its Restricted Subsidiaries;
(2) make loans or advances to Loral Space the Issuer or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to Loral Space the Issuer or any of its Restricted Subsidiaries.
(b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Spacethe Issuer) encumbrance or restriction applicable to Loral Space the Issuer or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space the Issuer or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor Issuer in an amount sufficient for Loral Space the Issuer to make the timely payment of interest, premium, premium (if any), Liquidated Damages (if any) and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty Indenture and the Securities and other Indebtedness that is solely an obligation of Loral Spacethe Issuer, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space the Issuer or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space the Issuer or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space this Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary GuarantorsSecurities;
(5) applicable law;
(6) any instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space the Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty to be incurred;
(7) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
(8) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08;
(9) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(12) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
(13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.the
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space From and after the Effective Date, the Issuer shall not, and shall not permit any of its Restricted Subsidiaries that are not Subsidiary Guarantors to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Subsidiary Guarantor to:
(1) (i) pay dividends or make any other distributions on its Capital Stock to Loral Space the Issuer or any of its Restricted Subsidiaries, Subsidiaries that is a Subsidiary Guarantor on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or or
(A) pay any indebtedness Indebtedness owed to Loral Space the Issuer or any of its Restricted Subsidiaries;Subsidiaries that is a Subsidiary Guarantor; Table of Contents
(2) make loans or advances to Loral Space the Issuer or any of its Restricted SubsidiariesSubsidiaries that is a Subsidiary Guarantor; or
(3) sell, lease or transfer any of its properties or assets to Loral Space the Issuer or any of its Restricted SubsidiariesSubsidiaries that is a Subsidiary Guarantor.
(b) The restrictions set forth in paragraph (aSection 4.08(a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as contractual encumbrances or restrictions in effect on the Issue Date Effective Date, including pursuant to the Senior Credit Facilities and any amendmentsthe Secured Notes and, modificationsin each case, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend the related documentation and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Daterelated Hedging Obligations;
(2) any customary (as conclusively determined in good faith by this Indenture, the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances Notes and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted SubsidiaryGuarantees;
(3) Purchase Money Obligations for property acquired in the Credit Agreement as ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in effect clause (3) of Section 4.08(a) on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Dateproperty so acquired;
(4) the Loral Space Indenture and the notes issued thereunderapplicable law or any applicable rule, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantorsregulation or order;
(5) applicable law;
(6) any agreement or other instrument governing of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by Loral Space or merged, consolidated or amalgamated with or into the Issuer or any of its Restricted Subsidiaries Subsidiary (or where such Person is an Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary in effect accordance with this Indenture), or any other transaction entered into in connection with any such acquisition, merger, consolidation, amalgamation or redesignation, in existence at the time of such acquisition (except to or at the extent such Indebtedness was incurred time it merges, consolidates or amalgamates with or into the Issuer or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person or at the time it is redesignated (but, in each case, not created in contemplation of such acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the PersonPerson and its Subsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired; provided thatacquired or redesignated;
(6) contracts, in 22 including sale-leaseback agreements, for the case sale or disposition of Indebtednessassets, including customary restrictions with respect to a Subsidiary of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of Capital Stock or assets of such Indebtedness was permitted by the terms of this Guaranty to be incurredSubsidiary;
(7) customary non-assignment provisions in leases entered into in the ordinary course of business Secured Indebtedness permitted to be incurred pursuant to Section 4.09 and consistent with past practices;
(8) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08;
(9) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness 4.12 that limit the right of the debtor to dispose of the assets subject to securing such LienIndebtedness;
(12) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
(13) 8) restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of businessbusiness or consistent with past practice or restrictions on cash, Cash Equivalents or other deposits permitted under Section 4.12 or arising in connection with any Permitted Liens;
(9) other Indebtedness, Disqualified Stock or Preferred Stock of Restricted Subsidiaries that are not Subsidiary Guarantors that is permitted to be incurred or issued subsequent to the Effective Date pursuant to the provisions of Section 4.09; Table of Contents
(10) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating to such joint venture;
(11) customary provisions contained in leases, subleases, licenses, 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 past practice or that in the judgment of the Issuer would not materially impair the Issuer’s ability to make payments under the Notes when due;
(12) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(13) any encumbrance or restriction with respect to a Restricted Subsidiary or Receivables Subsidiary which was previously an Unrestricted Subsidiary which encumbrance or restriction exists 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 Issuer or any other Restricted Subsidiary other than the assets and property of such Subsidiary and its Subsidiaries;
(14) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Effective Date pursuant to Section 4.09; provided that, (A) in the good faith judgment of the Issuer, such incurrence will not materially impair the Issuer’s ability to make payments under the Notes when due, (B) the encumbrances and restrictions in such Indebtedness, Disqualified Stock or Preferred Stock apply only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Indebtedness or (C) the encumbrances and restrictions in such Indebtedness, Disqualified Stock or Preferred Stock either are not materially more restrictive taken as a whole than those contained in the Senior Credit Facilities or the Notes as in effect on the Effective Date or generally represent market terms at the time of incurrence or issuance and are imposed solely on such Restricted Subsidiary and its Subsidiaries and in the judgment of the Issuer would not materially impair the Issuer’s ability to make payments under the Notes when due;
(15) restrictions contained in any documentation relating to any Permitted Receivables Financing;
(16) customary provisions in leases, subleases, licenses, sublicenses and other contracts restricting the assignment or other transfer thereof (or the assets subject thereto), including with respect to intellectual property; and
(17) any encumbrances or restrictions of the type referred to in clauses (1), (2) and (3) of Section 4.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (16) of this Section 4.08(b); provided that such amendments, Table of Contents modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, not materially more restrictive with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(c) For purposes of determining compliance with this Section 4.08, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (2) the subordination of loans and advances made to the Issuer or a Restricted Subsidiary to other Indebtedness incurred by the Issuer or such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Samples: Indenture (Avantor, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space shall The Issuer will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to Loral Space the Issuer or any of its Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness Indebtedness owed to Loral Space the Issuer or any of its Restricted Subsidiaries;Subsidiary; or
(2) make loans or advances to Loral Space the Issuer or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to Loral Space or any of its Restricted SubsidiariesSubsidiary.
(b) The restrictions set forth in paragraph (aSection 4.08(a) of this Section 4.08 shall not hereof will not, however, apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as in effect on the Issue Date and any amendmentsapplicable law, modificationsrule, restatementsregulation, renewalsorder, increasesapproval, supplementslicense, refundings, replacements permit or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Datesimilar restriction;
(2) restrictions contained in any documents or agreements evidencing, relating to or otherwise governing a Receivables Financing with respect to any Receivables Subsidiary;
(3) contractual encumbrances or restrictions in effect under any Indebtedness (a) represented by the Initial Notes and the Note Guarantees issued on the Issue Date, (b) outstanding on the Issue Date (including all Indebtedness under the Revolving Credit Facility and the Term Loan Credit Facility) and (c) otherwise permitted pursuant to this Indenture; provided that with respect to clause (c) the restrictions contained in the agreements or instruments governing such Indebtedness are not materially less favorable to Holders than is customary for comparable financings (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause Issuer);
(4) of paragraph (b) of Section 4.05; provided that, other than with respect any restrictions imposed by any agreement relating to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds secured Indebtedness permitted by this Indenture to the Guarantor extent that such restrictions apply only to the assets securing such Indebtedness;
(5) any agreement in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement effect at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that time such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary becomes a Restricted Subsidiary, customary (so long as so determined) restrictions on transactions such agreement was not entered into in contemplation of or in connection with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any such person becoming a Restricted Subsidiary;
(36) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment customary restrictions than those contained in such Credit Agreement, as in effect on any agreement relating to the Issue Date;
(4) sale of any asset permitted under Section 4.10 hereof pending the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5) applicable law;
(6) any instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space or any of its Restricted Subsidiaries as in effect at the time consummation of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty to be incurredsale;
(7) customary non-assignment provisions in leases joint venture agreements, partnership agreements, limited liability company documents and other similar agreements, in each case entered into in the ordinary course of business and consistent with past practicesbusiness;
(8) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08;
(9) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions customary provisions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(12) provisions with respect to the disposition leases or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements licenses and other similar agreements entered into in the ordinary course of business; and;
(139) customary restrictions on cash or other in connection with deposits or net worth imposed by customers under contracts in the ordinary course of business;
(10) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(11) encumbrances on property that exist at the time the property was acquired by the Issuer or a Restricted Subsidiary;
(12) other restrictions described in clauses (1) and (2) of this Section 4.08(a) hereof, but only to the extent that such restrictions do not materially adversely affect the consolidated cash position of the Issuer and the Restricted Subsidiaries; and
(13) any amendment, restatement, renewal, replacement or refinancing of an agreement referred to above; provided such restrictions are not materially more restrictive, taken as a whole, than those under the agreement being amended, restated, renewed, refinanced or replaced.
Appears in 1 contract
Samples: Indenture (WESTMORELAND COAL Co)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Operating Partnership shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on its any Capital Stock to Loral Space of such Restricted Subsidiary owned by the Operating Partnership or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space or any of its the Restricted Subsidiaries;
(2) make loans pay any Indebtedness or advances other obligations owed to Loral Space the Operating Partnership or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to Loral Space or any of its Restricted Subsidiaries.
(b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) make loans or advances to the Operating Partnership or any other Restricted Subsidiary; or
(4) transfer any of its property or assets to the Operating Partnership or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.08(a) hereof shall not apply to encumbrances or restrictions:
(1) in this Indenture, the Notes, the Note Guarantees, the Existing Credit Agreement as Facilities, the Existing Equipment Loan and any other agreement in effect on the Issue Date as the same are in effect on the Issue Date, and any amendmentsextensions, modificationsrefinancings, restatements, renewals, increases, supplements, refundings, renewals or replacements or refinancings thereofof such agreements; provided that the encumbrances and restrictions in any such amendmentsextensions, modificationsrefinancings, restatements, renewals, increases, supplements, refundings, replacement renewals or refinancings replacements are no more restrictiveless favorable in any material respect, taken as a whole, with respect to such dividend and other payment restrictions the Holders of the Notes than those contained in encumbrances or restrictions that are being extended, refinanced, renewed or replaced;
(2) imposed under any applicable documents or instruments pertaining to any current or future Secured Indebtedness permitted under this Indenture (and relating solely to assets constituting collateral thereunder or cash proceeds from or generated by such Credit Agreementassets);
(3) existing under or by reason of applicable law, as in effect on the Issue Daterule, regulation or order of any governmental authority or order of any court;
(4) on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into the Loral Space Indenture and the notes issued thereunderordinary course of business, this Guaranty and the Notes and the Guarantees of the Notes including such restrictions imposed by the Subsidiary Guarantorscustomers or insurance, surety or bonding companies;
(5) applicable lawwith respect to a Foreign Subsidiary, entered into the ordinary course of business or pursuant to the terms of Indebtedness of a Foreign Subsidiary that was Incurred by such Foreign Subsidiary in compliance with the terms of this Indenture;
(6) contained in any instrument governing Indebtedness license, permit or Capital Stock other accreditation with a regulatory authority entered into the ordinary course of business;
(7) which prohibit the payment or making of dividends or other distributions other than on a pro rata basis;
(8) existing with respect to any Person or the property or assets of any Person acquired by Loral Space the Operating Partnership or any of its Restricted Subsidiaries as in effect Subsidiary, existing at the time of such acquisition (except to the extent such Indebtedness was and not incurred in connection with contemplation thereof or in contemplation of such acquisition)connection therewith, which encumbrance encumbrances or restriction is restrictions are not applicable to any Person, Person or the properties property or assets of any Person, Person other than the Person, Person so acquired or the property or assets of the Person, Person so acquired; provided that, ;
(9) in 22 the case of Indebtednessclause (4) of Section 4.08(a) hereof:
(A) that restrict in a customary manner the subletting, such Indebtedness was permitted by the terms assignment or transfer of this Guaranty to be incurredany property or asset that is a lease, license, conveyance or contract or similar property or asset;
(7B) customary non-assignment provisions in leases entered into in existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the ordinary course of business and consistent with past practicesOperating Partnership or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(8) C) existing under or by reason of Capitalized Leases or purchase money obligations for property acquired in the ordinary course of business that impose restrictions on such property; or
(D) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property so acquired or assets of the nature described Operating Partnership or any Restricted Subsidiary in clause (3) of paragraph (a) of this Section 4.08any manner material to the Operating Partnership and the Restricted Subsidiaries taken as a whole;
(910) any with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or other disposition of a all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that restricts (including a restriction on distributions by that such Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced);
(11) Liens securing contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if the Operating Partnership determines that limit any such encumbrance or restriction shall not materially affect the right of Operating Partnership’s ability to make principal or interest payments on the debtor to dispose of the assets subject to such LienNotes;
(12) provisions with respect to the disposition existing under or distribution by reason of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
(13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(13) customary provisions contained in joint venture agreements and customary provisions in leases, in each case entered into in the ordinary course of business;
(14) any encumbrance or restriction existing under or by reason of Indebtedness or other contractual requirements of a Receivables Entity in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(15) by reason of customary nonassignment provisions in leases, licenses and other similar agreements entered into in the ordinary course of business;
(16) customary restrictions in asset or Capital Stock sale agreements or joint venture or other similar agreements limiting transfer of such assets or Capital Stock pending the closing of such sale or subject to the joint venture; or
(17) in connection with and pursuant to permitted extensions, refinancings, renewals or replacements of restrictions imposed pursuant to clauses (1) through (16) of this Section 4.08(b); provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect, taken as a whole, to the Holders than those encumbrances or restrictions that are being extended, refinanced, renewed or replaced. Nothing contained in this Section 4.08 shall prevent the Operating Partnership or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Operating Partnership or the Restricted Subsidiaries that secure Indebtedness of the Operating Partnership or any of the Restricted Subsidiaries. For purposes of determining compliance with this Section 4.08, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or distributions being paid on Common Stock shall not be deemed a restriction on the ability to pay dividends or make any other distributions on Capital Stock, and (2) the subordination of loans or advances made to a Restricted Subsidiary to other Indebtedness Incurred by such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Samples: Indenture (QTS Realty Trust, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (1i)(a) pay dividends or make any other distributions on its Capital Stock to Loral Space the Company or any of its Restricted Subsidiaries, Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (b) pay any indebtedness owed to Loral Space the Company or any of its Restricted Subsidiaries;
, (2ii) make loans or advances to Loral Space the Company or any of its Restricted Subsidiaries; or
Subsidiaries or (3iii) transfer any of its properties or assets to Loral Space the Company or any of its Restricted Subsidiaries.
(b) The . However, the foregoing restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
of (1a) Existing Indebtedness as in effect on the Issue Date Date, (b) this Indenture, the Notes and the Exchange Notes, and Indebtedness ranking PARI PASSU with the Notes provided such provisions are no more restrictive than the Notes (c) the Credit Agreement and any amendmentsForeign Subsidiary Credit Agreement, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided PROVIDED that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings the restrictions contained in the Credit Agreement are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in a credit agreement with terms that are commercially reasonable for a borrower that has substantially comparable Indebtedness and PROVIDED, FURTHER, that no such Existing Indebtedness, as provision in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on shall prohibit or restrict the Issue Date and ability of any amendmentsRestricted Subsidiary to pay dividends or make other upstream distributions or other payments to the Company or any of its Restricted Subsidiaries, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5d) applicable law;
, (6e) any instrument governing Indebtedness or Capital Stock of a Person or assets acquired by Loral Space the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided thatPROVIDED, that in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty the Indenture to be incurred;
, (7f) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
, (8) g) purchase money obligations (including pursuant to Purchase Money Indebtedness obligations) for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3iii) of paragraph above on the property so acquired, constructed, leased or improved, (a) of this Section 4.08;
(9h) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
, PROVIDED that the consummation of such transaction would not result in an Event of Default or an event that, with the passing of time or giving of notice or both, would constitute an Event of Default, that such restriction terminates if such transaction is not consummated and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into, (10i) Permitted Refinancing Indebtedness; provided , PROVIDED that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being extended, refinanced;
, renewed, replaced, defeased or refunded, (11j) Liens securing Indebtedness otherwise permitted to be incurred pursuant to Section 4.12 hereof that limit the right of the debtor Company or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
, (12k) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
, and (13l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Issuer shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) (A) pay dividends or make any other distributions on its Capital Stock to Loral Space the Issuer or any of its Restricted Subsidiaries, Subsidiaries on its Capital Stock or with respect to any other interest or participation in, or measured by, its profitsprofits (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock), or (B) pay any indebtedness Indebtedness owed to Loral Space the Issuer or any of its Restricted Subsidiaries;
(2) make loans or advances to Loral Space the Issuer or any of its Restricted SubsidiariesSubsidiaries (it being understood that the subordination of loans or advances made to the Issuer or any Restricted Subsidiary to other Indebtedness incurred by the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer sell, assign, transfer, lease, convey or otherwise dispose of any of its properties or assets to Loral Space the Issuer or any of its Restricted Subsidiaries.,
(b) The restrictions set forth in paragraph (aSection 3.4(a) of this Section 4.08 shall not apply (in each case) to encumbrances or restrictions existing under or by reason of:
(1i) Existing Indebtedness as contractual encumbrances or restrictions contained in the Senior Secured Credit Facilities and the related documentation and related Hedging Obligations and Cash Management Obligations or any other agreement or instrument in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements at or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect entered into on the Issue Date;
(2ii) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided thatthis Indenture, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors(including any exchange notes and related guarantees);
(5iii) applicable lawpurchase money obligations, mortgage financings, Capitalized Lease Obligations and similar obligations permitted under the Indenture that impose restrictions of the nature discussed in Section 3.4(a) on the property acquired, financed, designed, leased, constructed, repaired, maintained, installed or improved in connection therewith or thereby (including any proceeds thereof, accessions thereto and any upgrades or improvements thereto);
(6iv) applicable law or any applicable rule, regulation, order, authorization, permit or license;
(v) any agreement or other instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space the Issuer or any of its Restricted Subsidiaries as Subsidiary in effect existence at the time of such acquisition (except to or at the extent such Indebtedness was incurred time it merges with or into the Issuer or any Restricted Subsidiary or is assumed in connection with or the acquisition of assets from such Person (but, in each case, not created in contemplation of such acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Personsuch Person and its Subsidiaries, or the property or assets of the Personsuch Person and its Subsidiaries, so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty to be incurredacquired (including their respective after-acquired assets);
(7vi) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
(8) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08;
(9) any agreement contracts for the sale or other disposition of assets, including customary restrictions with respect to a Restricted Subsidiary of the Issuer pursuant to an agreement that restricts distributions by that Restricted Subsidiary pending its has been entered into for the sale or other dispositiondisposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(10vii) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Secured Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness otherwise permitted to be incurred pursuant to Section 3.2 and 3.6 that limit the right of the debtor to dispose of the assets securing such Indebtedness or subject to such LienLiens;
(12viii) restrictions on Cash Equivalents or other deposits or net worth imposed by customers, suppliers and landlords under contracts entered into in the ordinary course of business or as required by insurance surety or bonding companies;
(ix) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreementsagreements or arrangements, assets sale agreements, stock sale limited liability company agreements and other similar agreements relating solely to such joint venture; provided that with respect to any joint venture agreement relating to a Restricted Subsidiary, such provisions are not materially more disadvantageous to the Holders than is customary in comparable agreements or arrangements as determined in Good Faith by the Issuer;
(x) customary (as determined in Good Faith by the Issuer) provisions contained in leases, subleases, licenses, sublicenses or other agreements, in each case, entered into in the ordinary course of business;
(xi) any agreement or instrument relating to any Indebtedness or Preferred Stock of a Restricted Subsidiary permitted to be incurred subsequent to the Issue Date pursuant to Section 3.2 if (A) such encumbrances and restrictions, when taken as a whole, are either (x) not materially more disadvantageous to the Holders than is customary in comparable financings or (y) not materially more disadvantageous to the Holders than those applicable in either the Indenture or the Senior Secured Credit Facilities as in effect on the Issue Date, in each case, as determined by the Issuer in Good Faith, and (B) either (x) the Issuer determines in Good Faith that such encumbrance or restriction will not adversely affect the Issuer’s ability to make principal and interest payments on the Notes as and when they come due or (y) such encumbrances and restrictions apply only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Indebtedness;
(xii) covenants to maintain net worth, total assets or liquidity and similar financial responsibility covenants under contracts with customers or suppliers in the ordinary course of business; and
(13xiii) any such encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xii) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the ordinary course good faith judgment of businessthe Issuer, not materially more restrictive with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Appears in 1 contract
Samples: Indenture (Crown Media Holdings Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to Loral Space or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space or any of its Restricted Subsidiaries;
(2) make loans or advances to Loral Space or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to Loral Space or any of its Restricted Subsidiaries.
(b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5) applicable law;
(6) any instrument governing Indebtedness or Capital Stock of a Person acquired by Loral Space or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty to be incurred;
(7) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
(8) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) of this Section 4.08;
(9) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien;
(12) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
(13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Operating Partnership shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on its any Capital Stock to Loral Space of such Restricted Subsidiary owned by the Operating Partnership or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space or any of its the Restricted Subsidiaries;
(2) make loans pay any Indebtedness or advances other obligations owed to Loral Space the Operating Partnership or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to Loral Space or any of its Restricted Subsidiaries.
(b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) make loans or advances to the Operating Partnership or any other Restricted Subsidiary; or
(4) transfer any of its property or assets to the Operating Partnership or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.08(a) hereof shall not apply to encumbrances or restrictions:
(1) in this Indenture, the Notes, the Note Guarantees, the Existing Credit Agreement as Facility and any other agreement in effect on the Issue Date as the same are in effect on the Issue Date, and any amendmentsextensions, modificationsrefinancings, restatements, renewals, increases, supplements, refundings, renewals or replacements or refinancings thereofof such agreements; provided that the encumbrances and restrictions in any such amendmentsextensions, modificationsrefinancings, restatements, renewals, increases, supplements, refundings, replacement renewals or refinancings replacements are no more restrictiveless favorable in any material respect, taken as a whole, with respect to such dividend and other payment restrictions the Holders of the Notes than those contained in encumbrances or restrictions that are being extended, refinanced, renewed or replaced;
(2) imposed under any applicable documents or instruments pertaining to any current or future Secured Indebtedness permitted under this Indenture (and relating solely to assets constituting collateral thereunder or cash proceeds from or generated by such Credit Agreementassets);
(3) existing under or by reason of applicable law, as in effect on the Issue Daterule, regulation or order of any governmental authority or order of any court;
(4) on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into the Loral Space Indenture and the notes issued thereunderordinary course of business, this Guaranty and the Notes and the Guarantees of the Notes including such restrictions imposed by the Subsidiary Guarantorscustomers or insurance, surety or bonding companies;
(5) applicable lawwith respect to a Foreign Subsidiary, entered into the ordinary course of business or pursuant to the terms of Indebtedness of a Foreign Subsidiary that was Incurred by such Foreign Subsidiary in compliance with the terms of this Indenture;
(6) contained in any instrument governing Indebtedness license, permit or Capital Stock other accreditation with a regulatory authority entered into the ordinary course of business;
(7) which prohibit the payment or making of dividends or other distributions other than on a pro rata basis;
(8) existing with respect to any Person or the property or assets of any Person acquired by Loral Space the Operating Partnership or any of its Restricted Subsidiaries as in effect Subsidiary, existing at the time of such acquisition (except to the extent such Indebtedness was and not incurred in connection with contemplation thereof or in contemplation of such acquisition)connection therewith, which encumbrance encumbrances or restriction is restrictions are not applicable to any Person, Person or the properties property or assets of any Person, Person other than the Person, Person so acquired or the property or assets of the Person, Person so acquired; provided that, ;
(9) in 22 the case of Indebtednessclause (4) of Section 4.08(a) hereof:
(A) that restrict in a customary manner the subletting, such Indebtedness was permitted by the terms assignment or transfer of this Guaranty to be incurredany property or asset that is a lease, license, conveyance or contract or similar property or asset;
(7B) customary non-assignment provisions in leases entered into in existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the ordinary course of business and consistent with past practicesOperating Partnership or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(8) C) existing under or by reason of Finance Leases or purchase money obligations for property acquired in the ordinary course of business that impose restrictions on such property; or
(D) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property so acquired or assets of the nature described Operating Partnership or any Restricted Subsidiary in clause (3) of paragraph (a) of this Section 4.08any manner material to the Operating Partnership and the Restricted Subsidiaries taken as a whole;
(910) any with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or other disposition of a all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that restricts (including a restriction on distributions by that such Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced);
(11) Liens securing contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if the Operating Partnership determines that limit any such encumbrance or restriction shall not materially affect the right of Operating Partnership’s ability to make principal or interest payments on the debtor to dispose of the assets subject to such LienNotes;
(12) provisions with respect to the disposition existing under or distribution by reason of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
(13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(13) customary provisions contained in joint venture agreements and customary provisions in leases, in each case entered into in the ordinary course of business;
(14) any encumbrance or restriction existing under or by reason of Indebtedness or other contractual requirements of a Receivables Entity in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(15) by reason of customary nonassignment provisions in leases, licenses and other similar agreements entered into in the ordinary course of business;
(16) customary restrictions in asset or Capital Stock sale agreements or joint venture or other similar agreements limiting transfer of such assets or Capital Stock pending the closing of such sale or subject to the joint venture;
(17) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of such Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the REIT or any other Restricted Subsidiary;
(18) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement entered into in the ordinary course of business, provided such agreement restricts the encumbrance of solely the property or assets that are the subject of such agreement, the payment rights thereunder or the proceeds thereof;
(19) contained in any organizational documents of a REIT Subsidiary that are intended to ensure such REIT Subsidiary’s compliance with requirements for qualification as a real estate investment trust under the Code; or
(20) in connection with and pursuant to permitted extensions, refinancings, renewals or replacements of restrictions imposed pursuant to clauses (1) through (19) of this Section 4.08(b); provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect, taken as a whole, to the Holders than those encumbrances or restrictions that are being extended, refinanced, renewed or replaced.
(c) Nothing contained in this Section 4.08 shall prevent the Operating Partnership or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Operating Partnership or the Restricted Subsidiaries that secure Indebtedness of the Operating Partnership or any of the Restricted Subsidiaries. For purposes of determining compliance with this Section 4.08, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or distributions being paid on Common Stock shall not be deemed a restriction on the ability to pay dividends or make any other distributions on Capital Stock, and (2) the subordination of loans or advances made to a Restricted Subsidiary to other Indebtedness Incurred by such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Samples: Indenture (QualityTech, LP)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Operating Partnership shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on its any Capital Stock to Loral Space of such Restricted Subsidiary owned by the Operating Partnership or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Loral Space or any of its the Restricted Subsidiaries;
(2) make loans pay any Indebtedness or advances other obligations owed to Loral Space the Operating Partnership or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to Loral Space or any of its Restricted Subsidiaries.
(b) The restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) make loans or advances to the Operating Partnership or any other Restricted Subsidiary; or
(4) transfer any of its property or assets to the Operating Partnership or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.08(a) hereof shall not apply to encumbrances or restrictions:
(1) in this Indenture, the Notes, the Note Guarantees, the Existing Credit Agreement as Facility and any other agreement in effect on the Issue Date as the same are in effect on the Issue Date, and any amendmentsextensions, modificationsrefinancings, restatements, renewals, increases, supplements, refundings, renewals or replacements or refinancings thereofof such agreements; provided that the encumbrances and restrictions in any such amendmentsextensions, modificationsrefinancings, restatements, renewals, increases, supplements, refundings, replacement renewals or refinancings replacements are no more restrictiveless favorable in any material respect, taken as a whole, with respect to such dividend and other payment restrictions the Holders of the Notes than those contained in encumbrances or restrictions that are being extended, refinanced, renewed or replaced;
(2) imposed under any applicable documents or instruments pertaining to any current or future Secured Indebtedness permitted under this Indenture (and relating solely to assets constituting collateral thereunder or cash proceeds from or generated by such Credit Agreementassets);
(3) existing under or by reason of applicable law, as in effect on the Issue Daterule, regulation or order of any governmental authority or order of any court;
(4) on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts entered into the Loral Space Indenture and the notes issued thereunderordinary course of business, this Guaranty and the Notes and the Guarantees of the Notes including such restrictions imposed by the Subsidiary Guarantorscustomers or insurance, surety or bonding companies;
(5) applicable lawwith respect to a Foreign Subsidiary, entered into the ordinary course of business or pursuant to the terms of Indebtedness of a Foreign Subsidiary that was Incurred by such Foreign Subsidiary in compliance with the terms of this Indenture;
(6) contained in any instrument governing Indebtedness license, permit or Capital Stock other accreditation with a regulatory authority entered into the ordinary course of business;
(7) which prohibit the payment or making of dividends or other distributions other than on a pro rata basis;
(8) existing with respect to any Person or the property or assets of any Person acquired by Loral Space the Operating Partnership or any of its Restricted Subsidiaries as in effect Subsidiary, existing at the time of such acquisition (except to the extent such Indebtedness was and not incurred in connection with contemplation thereof or in contemplation of such acquisition)connection therewith, which encumbrance encumbrances or restriction is restrictions are not applicable to any Person, Person or the properties property or assets of any Person, Person other than the Person, Person so acquired or the property or assets of the Person, Person so acquired; provided that, ;
(9) in 22 the case of Indebtednessclause (4) of Section 4.08(a) hereof:
(A) that restrict in a customary manner the subletting, such Indebtedness was permitted by the terms assignment or transfer of this Guaranty to be incurredany property or asset that is a lease, license, conveyance or contract or similar property or asset;
(7B) customary non-assignment provisions in leases entered into in existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the ordinary course of business and consistent with past practicesOperating Partnership or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(8) C) existing under or by reason of Capitalized Leases or purchase money obligations for property acquired in the ordinary course of business that impose restrictions on such property; or
(D) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property so acquired or assets of the nature described Operating Partnership or any Restricted Subsidiary in clause (3) of paragraph (a) of this Section 4.08any manner material to the Operating Partnership and the Restricted Subsidiaries taken as a whole;
(910) any with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or other disposition of a all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary that restricts (including a restriction on distributions by that such Restricted Subsidiary pending its sale or other disposition;
(10) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced);
(11) Liens securing contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if the Operating Partnership determines that limit any such encumbrance or restriction shall not materially affect the right of Operating Partnership’s ability to make principal or interest payments on the debtor to dispose of the assets subject to such LienNotes;
(12) provisions with respect to the disposition existing under or distribution by reason of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
(13) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(13) customary provisions contained in joint venture agreements and customary provisions in leases, in each case entered into in the ordinary course of business;
(14) any encumbrance or restriction existing under or by reason of Indebtedness or other contractual requirements of a Receivables Entity in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Entity;
(15) by reason of customary nonassignment provisions in leases, licenses and other similar agreements entered into in the ordinary course of business;
(16) customary restrictions in asset or Capital Stock sale agreements or joint venture or other similar agreements limiting transfer of such assets or Capital Stock pending the closing of such sale or subject to the joint venture;
(17) any encumbrance or restriction with respect to a Restricted Subsidiary which was previously an Unrestricted Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a party to entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of such Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the REIT or any other Restricted Subsidiary;
(18) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement entered into in the ordinary course of business, provided such agreement restricts the encumbrance of solely the property or assets that are the subject of such agreement, the payment rights thereunder or the proceeds thereof; or
(19) in connection with and pursuant to permitted extensions, refinancings, renewals or replacements of restrictions imposed pursuant to clauses (1) through (18) of this Section 4.08(b); provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect, taken as a whole, to the Holders than those encumbrances or restrictions that are being extended, refinanced, renewed or replaced. Nothing contained in this Section 4.08 shall prevent the Operating Partnership or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Operating Partnership or the Restricted Subsidiaries that secure Indebtedness of the Operating Partnership or any of the Restricted Subsidiaries. For purposes of determining compliance with this Section 4.08, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or distributions being paid on Common Stock shall not be deemed a restriction on the ability to pay dividends or make any other distributions on Capital Stock, and (2) the subordination of loans or advances made to a Restricted Subsidiary to other Indebtedness Incurred by such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 1 contract
Samples: Indenture (QualityTech, LP)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Loral Space The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (1i)(a) pay dividends or make any other distributions on its Capital Stock to Loral Space the Company or any of its Restricted Subsidiaries, Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (b) pay any indebtedness owed to Loral Space the Company or any of its Restricted Subsidiaries;
, (2ii) make loans or advances to Loral Space the Company or any of its Restricted Subsidiaries; or
Subsidiaries or (3iii) transfer any of its properties or assets to Loral Space the Company or any of its Restricted Subsidiaries.
(b) The . However, the foregoing restrictions set forth in paragraph (a) of this Section 4.08 shall not apply to encumbrances or restrictions existing under or by reason of:
of (1a) Existing Indebtedness as in effect on the Issue Date Date, (b) this Indenture and the Notes, and Indebtedness ranking pari passu with the Notes provided such provisions are no more restrictive than the Notes, (c) the Credit Agreement and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereofForeign Subsidiary Credit Agreement; provided PROVIDED that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings the restrictions contained in the Credit Agreement are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in a credit agreement with terms that are commercially reasonable for a borrower that has substantially comparable Indebtedness; and PROVIDED, FURTHER, that no such Existing Indebtedness, as provision in effect on the Issue Date;
(2) any customary (as conclusively determined in good faith by the Chief Financial Officer of Loral Space) encumbrance or restriction applicable to Loral Space or a Restricted Subsidiary that is contained in an agreement or instrument governing or relating to Indebtedness of Loral Space or Indebtedness contained in any Credit Facilities or Indebtedness incurred pursuant to clause (4) of paragraph (b) of Section 4.05; provided that, other than with respect to Preferred Stock of a Subsidiary or Non-Recourse Debt of a Subsidiary (including Non-Recourse Debt that is Acquired Debt), such encumbrances and restrictions permit the distribution of funds to the Guarantor in an amount sufficient for Loral Space to make the timely payment of interest, premium, if any, and principal (whether at stated maturity, by way of a sinking fund applicable thereto, by way of any mandatory redemption, defeasance, retirement or repurchase thereof, including upon the occurrence of designated events or circumstances or by virtue of acceleration upon an event of default, or by way of redemption or retirement at the option of the holder of the Indebtedness, including pursuant to offers to purchase) according to the terms of this Guaranty and other Indebtedness that is solely an obligation of Loral Space, but provided further that such agreement may nevertheless contain customary (as so determined) net worth, leverage, invested capital and other financial covenants, customary (as so determined) covenants regarding the merger of or sale of all or any substantial part of the assets of Loral Space or any Restricted Subsidiary, customary (as so determined) restrictions on transactions with affiliates and customary (as so determined) subordination provisions governing Indebtedness owed to Loral Space or any Restricted Subsidiary;
(3) the Credit Agreement as in effect on shall prohibit or restrict the Issue Date and ability of any amendmentsRestricted Subsidiary to pay dividends or make other upstream distributions or other payments to the Company or any of its Restricted Subsidiaries, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Agreement, as in effect on the Issue Date;
(4) the Loral Space Indenture and the notes issued thereunder, this Guaranty and the Notes and the Guarantees of the Notes by the Subsidiary Guarantors;
(5d) applicable law;
, (6e) any instrument governing Indebtedness or Capital Stock of a Person or assets acquired by Loral Space the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, PROVIDED that in 22 the case of Indebtedness, such Indebtedness was permitted by the terms of this Guaranty the Indenture to be incurred;
, (7f) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
, (8) g) purchase money obligations (including pursuant to Purchase Money Indebtedness obligations) for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3iii) of paragraph above on the property so acquired, constructed, leased or improved, (a) of this Section 4.08;
(9h) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
; PROVIDED that the consummation of such transaction would not result in an Event of Default or an event that, with the passing of time or giving of notice or both, would constitute an Event of Default, that such restriction terminates if such transaction is not consummated and that the consummation or abandonment of such transaction occurs within one year of the date such agreement was entered into, (10i) Permitted Refinancing Indebtedness; provided PROVIDED that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being extended, refinanced;
, renewed, replaced, defeased or refunded, (11j) Liens securing Indebtedness otherwise permitted to be incurred pursuant to Section 5.11 hereof that limit the right of the debtor Company or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
, (12k) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and
, and (13l) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
Appears in 1 contract
